General Terms and Conditions
General Terms and Conditions of Sale and Supply of S&R Solar Systems B.V. (hereinafter referred to as "S&R"), Weteringstraat 8, 7041 GW ‘s-Heerenberg, The Netherlands.
1.Validity, differing terms and conditions of business, authority to represent
1.1These general terms and conditions of business shall only apply in relation to entrepreneurs, public legal entities and public special funds.
1.2 The contracting parties are in agreement that the general terms and conditions of business of S&R shall by way of current valid version form the basis of all future purchase contracts and contracts for work and materials concluded between them within the framework of their business relationship. Any subsequent amendments to the general terms and conditions of business shall become valid if it is documented that the customer has been informed thereof in text form and does not object to such notification within three weeks.
1.3 Any terms and conditions of business of the customer deviating from or supplementing these general terms and conditions of business shall not be valid. They shall only become effective if expressly confirmed in writing by S&R. This shall also apply if S&R, in the knowledge of divergent terms and conditions of business of the customer, executes delivery or other performance without proviso.
1.4 S&R's employees shall not be entitled to make any subsidiary agreements extending beyond the written contract or which amend or waive these general terms and conditions of business. The authority to represent held by the managing directors and holders of general commercial power of attorney [Prokuristen] in a number bestowing entitlement to represent shall not be affected.
2. Offers, conclusion of contract, commercial property rights
2.1 Offers by S&R shall be subject to confirmation. A contract shall only come into being upon confirmation from S&R in text form.
2.2 S&R shall retain its ownership rights, copyright, registered-design rights and other property rights in all illustrations, costings, drawings, drafts, designs, tools and other documents. The customer shall only be permitted use within the framework of the contractual object. The customer shall not be permitted any further use, in particular reproduction, onward transmission to third parties or other commercial use.
2.3 If the customer supplies any illustrations, costings, drawings, drafts, designs or other documents, it shall be liable in relation to S&R to the effect that use of the documents does not infringe any commercial property rights, in particular patents, registered designs, copyright or other rights of third parties. The customer indemnifies S&R against claims of third parties in respect of such violations of law.
3. Prices, payment terms
3.1 All prices shall be ex works plus packaging and the respectively applicable statutory value added tax.
3.2 The transfer or delivery of goods and services shall in principle take place against advance payment; delivery against invoice shall however be subject to a successful credit check. Unless otherwise agreed, invoices from S&R shall be due for payment immediately upon receipt and are payable by the customer within ten days from the date of invoice without deduction.
3.3 If the customer is in default with its payment obligations, then S&R shall be entitled to charge the customer for each reminder a reasonable fee in the sum of at least EUR 5.00, unless the customer shows that the costs actually incurred are lower. If due dates are exceeded or in the event of extension of time for payment, S&R shall be entitled to demand interest on sums in arrears and moratorium interest in the annual sum of 8 percentage points above the respective base rate pursuant to Section 247 of the German Civil Code [BGB].
3.4 If the customer is in arrears with payment, notwithstanding further claims and rights, S&R shall be entitled to serve extraordinary notice of termination in respect of any debt-extension agreement and to claim immediate payment of all amounts receivable.
3.5 If the customer does not comply with its payment obligations despite a reminder, suspends making payments or a bank fails to honor a cheque or a debit due to insufficient funds, S&R may claim immediate payment of all existing amounts receivable.
3.6 S&R further reserves the right, in order to secure the credit risk in an individual instance, to exclude certain types of payment and to execute requested deliveries only in return for advance payment, cash on delivery or immediate payment upon delivery or transfer. If, further to conclusion of contract, facts shall become known which give rise to objective doubts as to whether the customer will fulfill the contract in accordance with its duties, such as for instance due to insolvency or repudiation, S&R shall be entitled to demand prepayment or corresponding security and in the event of refusal to withdraw from the contract.
3.7 S&R shall be entitled to assign the claims arising from the business association.
4. Offsetting, right of retention
4.1 The customer shall only hold offsetting rights in so far as its counterclaim has been established res judicata or acknowledged by S&R.
4.2 The customer may only base any right to refuse payment or right of retention on claims arising from the same contractual relationship.
4.3 Any assignment of claims shall only be permitted with the prior written consent of S&R.
5. Delivery, reservation of self-supply, default, force majeure, part performance
5.1 Adherence to agreed delivery dates shall require that the customer fulfils in a proper and timely fashion all obligations incumbent upon it.
5.2 The right of correct and timely self-supply is reserved.
5.3 If the customer is in default in terms of formal acceptance, or if the customer culpably breaches other duties of collaboration, then S&R shall be entitled to demand indemnity for any losses suffered in this regard, including any additional expenses. The right to assert further claims or rights remains reserved.
5.4 In so far as the preconditions of clause 5.3 are given, the risk of any destruction or deterioration of the item purchased shall pass to the customer at such time as the latter shall be in default either in terms of formal acceptance or as debtor.
5.5 S&R shall be liable according to the rules of the law in so far as the underlying purchase contract is a fixed transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code [BGB] or Section 376 of the German Commercial Code [HGB]. S&R shall also be liable under the terms of the law in so far as, as a consequence of delivery default attributable to S&R, the customer is entitled to assert that it no longer has any interest in further contractual fulfillment.
5.6 S&R shall further be liable according to the rules of the law in so far as delivery default is based on an intentional or grossly-negligent breach of contract attributable to S&R; fault on the part of its representatives or vicarious agents shall be attributed to S&R. In so far as delivery default is based on a grossly-negligent breach of contract attributable to S&R, the latter's liability for damages shall be limited to such loss as is predictable and would typically be incurred.
5.7 S&R shall further be liable in the event of delivery default for each full week of default within the framework of a flat-rate default indemnity in the sum of 0.5% of the consignment value, but by way of maximum no more than 5% of the consignment value.
5.8 The customer's further statutory claims and rights remain reserved.
6. Transfer, transfer of risk, transportation
6.1 Unless otherwise agreed in an individual instance, delivery shall take place ex works in ‘s-Heerenberg, the Netherlands (Incoterms 2000).
6.2 In so far as delivery is made to another place at the request of the customer, this shall be at the risk and for the account of the customer. Any instructions as to the type of dispatch must be notified in writing by the customer to S&R on a timely basis. They shall only be binding upon S&R if confirmed by S&R in text form.
6.3 The risk of destruction and deterioration shall pass to the customer in the case of delivery ex works as soon as the item purchased has been made available to the customer. Otherwise, the risk of destruction and deterioration shall pass to the customer upon transfer of the item purchased, and at the latest upon transfer of the item purchased to the forwarding agent. This shall also be the case if part performances are rendered or S&R has assumed additional performances, such as transportation.
6.4 S&R shall only take out transport insurance upon specific instructions and at the cost of the customer.
6.5 With regard to the return of packaging, separate agreements shall apply.
7. Retention of title
7.1 S&R shall retain ownership of the item purchased until the receipt of all payments arising from the business relationship with the customer. In the event of conduct in breach of contract by the customer, in particular in the case of payment default, S&R shall be entitled to take back the item purchased. Taking back of the item purchased by S&R shall constitute withdrawal from the contract. S&R shall be authorized further to taking back of the item purchased to sell the same, and the proceeds of sale shall be set against the customer's liabilities – less reasonable costs of sale.
7.2 The customer shall be under a duty to treat the item purchased with care; in particular, it shall be under a duty at its own expense to insure the item adequately in the sum of its value as new against fire and water damage and theft. In so far as maintenance and inspection work is required, the customer must conduct the same at the due time at its own expense.
7.3 In the case of attachment or other encroachment by third parties, the customer must inform S&R immediately in writing so that S&R can institute court proceedings pursuant to Section 771 of the German Code of Civil Procedure [ZPO]. In so far as the third party is not in a position to repay to S&R the court and out-of-court costs of proceedings pursuant to Section 771 of the German Code of Civil Procedure [ZPO], the customer shall be liable for the loss incurred by S&R.
7.4 The customer shall be entitled to sell on the item purchased in the context of ordinary business dealings; however, it hereby assigns to S&R all claims in the sum of the final invoice amount (including VAT) of our claim, which shall accrue to the customer from onward sale against ist purchasers or third parties, irrespective of whether the item purchased has been sold on with or without further processing. The customer shall retain authority to collect this claim also further to assignment. The authority of S&R to collect the claim itself shall not be affected. S&R however undertakes not to collect the claim for as long as the customer complies with its payment obligations from the proceeds received, does not fall into payment arrears and in particular no application has been made for institution of composition or insolvency proceedings and payments have not been suspended. If this is however the case, then S&R can demand that the customer notifies it of the claims assigned and their debtors, provides all information required for collection, hands over the pertinent documents and notifies assignment to the debtors (third parties).
7.5 Processing or remodelling of the item purchased by the customer shall always be undertaken on behalf of S&R. If the item purchased is processed using other items not belonging to S&R, then S&R shall acquire co-ownership of the new item in the proportion of the value of the item purchased (final invoice amount including VAT) to the other items processed at the time of processing. With regard to the item arising as a result of processing, the same shall further apply as with regard to the item purchased supplied subject to proviso.
7.6 If the item purchased is combined inseparably with other items not belonging to S&R, then S&R shall acquire co-ownership of the new item in the proportion of the value of the item purchased (final invoice amount, including VAT) to the other combined items at the time of combination. If combination takes place in such manner that the customer's item is to be viewed as the principal item, then it shall be deemed agreed that the customer transfers co-ownership to S&R on a pro-rata basis. The customer shall retain the sole ownership or co-ownership thus arising on behalf of S&R.
7.7 The customer also assigns to S&R the claims to securing of its claims against it, which arise against a third party due to combination of the item purchased with real property. 7.8 S&R undertakes to release the security due to it at the request of the customer in so far as the realizable value of our security exceeds the claims to be secured by more than 10%; selection of the security to be released shall be incumbent upon S&R.
8. Agreement as to quality, assembly
8.1 The item purchased shall accord with the contract if it is suitable for ordinary use/has a quality which is usual for items of the same type and which the customer can expect according to the nature of the item. Specimens, brochure indications or information arising from other advertising material are all non-binding reference material.
8.2 Any agreement as to quality deviating from these terms or the assumption of any guarantee shall only be valid when confirmed in writing by S&R. S&R's employees shall not be entitled to make or give any quality agreements or guarantees extending beyond the written contract and these terms. The authority to represent of the managing directors and holders of general commercial power of attorney [Prokuristen] in such number as bestows authority to represent shall not be affected.
8.3 If S&R, via its personnel, supports the construction management or other personnel of the customer in overseeing assembly/actual assembly, S&R shall only be liable for selecting suitable personnel in technical terms. S&R shall not assume the tasks and activities of the construction management, the technical construction management, the construction supervisors, planning or coordination services or assembly work. Neither shall S&R assume the task of incorporation of the item purchased in accordance with technical specifications and drawings.
9. Duty of examination and notification of complaints, claims as to defects
9.1 Claims as to defects by the customer shall require that it has complied with its duties of examination and notification of complaint contained in Section 377 of the German Commercial Code [HGB]. Defects shall be notified in writing.
9.2 In so far as the item purchased comprises a defect, S&R shall be entitled to choose between supplementary performance in the form of remedying of the defect, or delivery of a new flawless item. In the event of supplementary performance, S&R shall be under a duty to bear all expenses payable for the purpose of remedying the defect, in particular transport costs, travel costs, labour costs and material costs, provided that these are not increased on the basis that the item purchased was brought to a place other than the place of performance.
9.3 If supplementary performance fails, then the customer shall be entitled to select between withdrawal or price reduction.
9.4 S&R shall be liable according to the statutory terms in so far as the customer asserts damages claims based on intent or gross negligence, including intent or gross negligence of its representatives or vicarious agents. In so far as S&R is not charged with intentional breach of contract, liability for damages shall be limited to such loss as is predictable and would typically be incurred.
9.5 S&R shall be liable in accordance with the statutory rules in so far as we commit a culpable breach of a material contractual duty; in such event too, however, liability for damages shall be limited to such loss as is predictable and would typically be incurred. A material contractual duty shall be given if the breach of duty relates to a duty, the performance of which the customer has relied upon and indeed was entitled to rely upon.
9.6 Liability in respect of culpable causation of death, physical injury or damage to health shall remain unaffected; this shall also apply with regard to mandatory liability under the Law on Product Liability [Produkthaftungsgesetz].
9.7 Unless otherwise stated above, liability is excluded.
9.8 The statute of limitations for claims as to defects shall be 12 months with effect from transfer of risk.
9.9 The statue of limitations in the event of a supplier recourse claim pursuant to the terms of Sections 478 and 479 of the German Civil Code [BGB] shall not be affected; the period shall be five years with effect from delivery of the defective item.
10. Extended durability guarantee for products in the division of Solar Assembly Systems
10.1 In so far as S&R grants the customer a guarantee as to the durability of constructional components or systems, the following terms shall apply:
10.2 Unless otherwise agreed, a guarantee period of 10 years shall apply. If, for particular constructional components, generally or for a particular type of use a possible shorter life is expressly indicated or provided for within the framework of S&R's individually-generated plans, an exchange is scheduled within a shorter period, the guarantee period shall be restricted to such life or period.
10.3 The guarantee is granted in respect of the durability of the items purchased and shall lead exclusively to the claims specified below.
10.4 If, despite proper installation and handling, in the context of normal use, damage is caused to the items purchased, S&R shall immediately exchange the constructional component in question within the guarantee period. The guarantee is limited to additional delivery and assembly of the defective components upon notification of the damage within the guarantee period. Any statutory guarantee or liability claims shall remain unaffected.
10.5 The obligation to fulfil the guarantee shall not apply if the damage has arisen in connection with defective installation or handling of the system or in connection with exceptional stress (e.g. storm damage, impact of instability of the sub-surface, particular chemical or biological effects), unless the damage is documented as not having been caused thereby but essentially due to a material or construction error. With regard to installation and handling, the technical product descriptions and installation instructions regarding the respective products as supplied by us shall apply, as shall the statutory and generally-recognized standards and principles of building and construction work as well as, as appropriate, on a priority basis, the plans, statics and instructions prepared by us individually for the customer.
10.6 No claims shall exist if the damage is covered or can usually be covered by insurance against storm and similar events (natural-peril insurance).
10.7 This guarantee shall only establish claims of S&R's customer, via which all guarantee claims are to be settled. Assertion by third parties shall only be possible if S&R agrees thereto.
11. Liability, damages and repayment of expenses
11.1 Any further liability for damages other than provided in clause 9 shall be excluded – without regard to the legal nature of the claim asserted. This shall apply in particular regarding damages claims arising from fault (Verschulden) upon conclusion of contract, other breaches of duty or claims in tort to making good of material damage pursuant to Section 823 of the German Civil Code [BGB].
11.2 The limitation pursuant to 11.1 above shall also apply in so far as the customer demands reimbursement of unproductive expenses in place of claiming damages or performance.
11.3 In so far as liability for damages is excluded or limited in relation to ourselves, this shall also apply with regard to the personal liability for damages of S&R's employees, staff, representatives and vicarious agents.
12. Applicable law, place of performance, place of jurisdiction
12.1The law of the Federal Republic of Germany shall apply by way of current valid version.
12.2 Unless otherwise stated in the purchase contract, S&R's place of business shall be place of performance.
12.3 If the customer is a businessperson, public legal entity or public special fund, place of business shall be place of jurisdiction. S&R shall however also be entitled to sue the customer at the court of the customer's place of residence.
12.4 Pursuant to Section 33 of the Federal Law on Data Protection [Bundesdatenschutzgesetz], we would point out that customer data is stored and used for business purposes.