General Terms of Delivery and Payment

of the company BayWa r.e. Solar Systems Ltd. (hereinafter referred to as BayWa r.e.)

Dated: May 2019


1) These terms of delivery and payment (hereinafter: terms) only apply to companies and legal entities under public law, as well as to separate estates under public law as customers (buyers) of the products traded by BayWa r.e. (hereinafter referred to as business partner – BP). They apply to all legal transactions/deals, including all corresponding secondary and auxiliary transac-tions, whose direct or indirect object/origin is the distribution (sale) of the products traded by BayWa r.e..

2) The business transactions, including all auxiliary, secondary, and executing transactions (deliver-ies and services), as well as the preceding offers of BayWa r.e., are based exclusively on these terms. They also apply to legal obligations whose origin lies directly or indirectly in business transactions between BayWa r.e. and the BP, as well as for future business relations between them, should BayWa r.e. refer to these.

3) If BayWa r.e., as a trade enterprise, is economically or legally limited on the supply side by terms of preliminary suppliers, also those of components, single parts, and software, these limitations also apply to the BP (customer) of BayWa r.e., if and to the extent to which BayWa r.e. has in-formed him about the limitation upon the closing of the transaction and instructed him about its contents.


1) These terms become the subject of the transaction with the BP through indications/references to them by BayWa r.e. in offers, acceptances (in the legal sense), order confirmations, and other equivalent documents, or through the conclusion of framework agreements/term sheets, if appli-cable.

2) Otherwise they become the subject matter of the contract through the uncontested acceptance of the offer by BayWa r.e. or through the receipt of the declaration of acceptance by BayWa r.e. for a preceding offer (order) of the BP, upon reference to the terms in the declaration of ac-ceptance, or through the uncontested acceptance of the order confirmation of BayWa r.e..

3) All declarations, notifications, announcements, confirmations, acceptances, and similar commu-nications to which these terms refer are only legally effective if they have been delivered in writ-ten or equivalent form, provided that nothing else arises from these terms in individual cases. Equivalent forms are transmissions by fax, e-mail, or electronic data transmission. Should there be a lack of compliance with these formal requirements, the according statements will have no legal effect.
The same applies in case of changes or amendments to these conditions (Section IV 5). Busi-ness transactions through electronic media are also included.

4) These terms are accessible to the BP through the internet portal/web site of BayWa r.e. and he may read and access them at any time. Should there be individual cases were business transac-tions are concluded by word of mouth, these conditions equally apply, if they have been verbally referred to by BayWa r.e..

5) BayWa r.e. objects to any business and purchasing conditions of its BP, should he refer to them upon the commencement of the business connection, or during its transaction, including the ref-erence in orders, contract letters, declarations of acceptance, and the like, if they are not con-sistent with the terms of BayWa r.e.. The objection of BayWa r.e. to the terms and conditions of their BP is also valid in those cases in which the own terms and conditions of BayWa r.e. contain no regulations.
This objection also applies to future business transactions.


1) The offers of BayWa r.e. are subject to change, provided that they have been explicitly designat-ed as being so. Otherwise, BayWa r.e. is bound to its offers – including terms and prices for these – for the length of 30 days.

2) If the order of a BP is to be qualified, BayWa r.e. may accept it within a period of 30 days, provided that no further (longer) term of acceptance has been concluded.

3) The scope of the delivery and the due date for the payment (purchase price) to be made by the BP always depend on the written order confirmation of BayWa r.e.. In the case of a business transaction based on an offer by BayWa r.e., the scope of the delivery is subject to this offer if a further order confirmation is lacking.

4) Deviations from these terms in order confirmations or offers by BayWa r.e. in concrete individual cases suspend the same (general terms) to the extent of the deviation (principle of precedence of concrete specifications in order confirmations and offers over general terms).

5) The business transactions are based exclusively upon commercially relevant legal acts (offer, acceptance, order confirmation, commercial confirmation letter, if applicable). Subsidiary agree-ments or changes to the documents relevant for the contract conclusion, including these terms, require the explicit confirmation by BayWa r.e. to become legally effective.


1) BayWa r.e. reserves the proprietary rights and copyrights to its drawings, images, calculations, and developed software. The same goes for publications of such via electronic media. These documents may not be made accessible to third parties.

2) BayWa r.e. obligates itself towards the BP to only make plans and other documents described as confidential by him accessible to third parties with his prior consent, irrespective of their form of communication, and to otherwise maintain confidentiality.

3) The preceding non-disclosure obligations are not valid with regard to such communications that are regarded as generally established within the respective business circles.


1) Unless otherwise indicated in the offers of BayWa r.e. and/or its order confirmations, the prices used as a basis are ‘ex works’ or ‘ex office’ from the responsible BayWa r.e. operating site, ex-cluding packaging and transport costs, as well as possible insurance charges (transport insur-ance), which are calculated separately. BayWa r.e. is authorized, but not obligated, to insure the deliverable products/goods against transport risks, even without explicit instructions by the BP. The (pro-rata) insurance costs will also be charged to the BP.

2) The offer prices of BayWa r.e. are net prices, if no VAT is declared separately. The legal amount of VAT will be shown separately on the invoice, or an equivalent commercial document, on the date of issue.

3) Cash discount deductions are only permissible after explicit written consent by BayWa r.e. or in case of an according statement in the relevant commercial document of BayWa r.e..


1) The fee to be paid by the BP, without need for further invoicing, becomes payable upon issuing of the order confirmation, even if it is not additionally designated as a bill/invoice. The maturity of the payment obligation sets in independent of the time of delivery, i.e. even before its completion.

2) Should there be no order confirmation by BayWa r.e., the obligation to pay the fee matures upon transaction of the business, i.e. through offer and acceptance.

3) The maturity of the payment obligation of the BP is not connected to a contemporaneous delivery by BayWa r.e..

4) Should the BP not fulfil his payment obligations, should payments stagnate, should he have ceased his payment, should he demand deferment of payment, or should concrete circumstanc-es become known that reasonably put into question his credit status, BayWa r.e. is authorized to make payable all the accounts receivable that it is entitled to receive from him. In this case, BayWa r.e. may make use of its security rights, especially the exercise of its rights to reservation of title to the agreed extent, or to the extent stated in these terms, without the precondition of de-fault having to be given on the customer side, and without an obligation to withdraw from the contract.

5) In accordance with the provisions of Articles 3 and 4 of the amended law of 18 April 2004, any late payment in commercial transactions respectively in transactions with the public authorities entails ipso jure and without prior notice the payment of interest on late payment. These late payment penalties are set in accordance with the reference rates applicable under the amended law of 18 April 2004, the rate of which is published every six months in the Luxem-bourg official gazette (Mémorial).

6) BayWa r.e. is also entitled to claim from the TP (Trade Partner), in addition to the interest on late payment stipulated under point 5), a lump sum indemnity of € 40 (forty euros) to cover recovery costs. Payment of this lump sum payment shall be due without the need for a reminder.

7) BayWa r.e. is also entitled to claim the reimbursement of other recovery costs incurred due to the Trade Partners’ late payment. These costs include, in particular, the costs incurred by BayWa r.e. in hiring a lawyer or debt collection agency. The amount claimed for the reimbursement of these costs may not exceed 15% of the principal amount of the debt.

8) In case of default – for which legal provisions apply – and if the agreements between BayWa r.e. and the BP or these terms do not indicate otherwise, the BP shall pay a default interest rate of 8% above the effective base rate on the open receivables of BayWa r.e..

9) The place of payment for the BP is the place of business of BayWa r.e.. The timeliness of a payment is always determined by the receipt of payment by BayWa r.e. or the definitive valida-tion/redemption of a payment surrogate. BayWa r.e. is not obliged to accept such surrogates (cheques, etc.), unless they are confirmed/backed as customary. Such surrogates are only ac-cepted on account of performance in all cases. Credits to the business cheque account of Bay-Wa r.e. only count as definitive validations if their reclamation is no longer possible or is no long-er permissible according to the legal rules for national and/or international transactions of pay-ments.


In case of a tax-exempt intra-community supply, specified in Article 43, 1. d) of the Luxembourgish VAT (value-added tax) law, the customer is obliged to sign and return an entry certification. The return of the entry certification to the com-pany shall be made within 30 days after delivery of the purchased item by the company or a third party service. If the customer fails to comply with his obliga-tion, the sales tax (VAT) is recalculated. The property purchase remains subject to the receipt of the entry certification or to the payment of sales tax recalculated.


1) BayWa r.e. is entitled to set off all claims it has towards the BP against all claims of the BP, irrespective of their respective legal basis. This is also applicable if the mutual claims are based on different legal relationships.

2) The BP is not entitled to set off against possible claims he has, especially based on supplemen-tary performance, damages, and other counterclaims, or to exercise rights of retention on due claims of BayWa r.e., unless the counterclaims have been determined to be legally valid, or are not contested by BayWa r.e..

3) Without the consent of BayWa r.e., the BP is not authorized to assign possible claims he is entitled to from the business transaction, which is based on these terms, to third parties.


1) The term of delivery begins with the transmission of the order confirmation – possibly within the term stated therein –; in default of the issuing of an order confirmation it begins with the ac-ceptance of the offer of BayWa r.e. or with the acceptance by BayWa r.e., but not before the provision of the documents, permissions, or clearances to be procured by the BP, or before the receipt of the due advance payment (advance performance) according to these terms or settled in individual agreements.

2) The term of delivery has been kept if the delivery item has left the plant or operating site of BayWa r.e. before its expiration, or if the readiness for shipping has been communicated. In this case, the delivery is seen as having been performed, also with regard to VAT law.

3) In case there are no explicit agreements that state otherwise, the dates and terms stated by BayWa r.e. are no fixed dates.

4) BayWa r.e. shall not be held responsible for delivery delays due to force majeure or events that considerably complicate the performance for BayWa r.e. or make it impossible – these also in-clude subsequently occurred difficulties during material procurement, traffic disturbances, includ-ing those of international goods traffic, namely of imports, operative disruptions, strikes, lockouts, other official orders for which BayWa r.e. is not to be held responsible, also insofar as these oc-cur among preliminary suppliers –, also if binding terms and dates have been arranged. Such events entitle BayWa r.e. to defer the delivery for the duration of the obstruction, with an ade-quate additional respite, or to partially or completely withdraw from the contract due to a part that has not yet been fulfilled.

5) If the obstruction for which BayWa r.e. is not to held responsible according to the previous clause No. 4 lasts longer than two months, the BP is entitled to withdraw from the contract with regard to the not yet fulfilled part after having set an adequate respite. Further rights of the BP are exclud-ed. The same applies if BayWa r.e. is not responsible for the delivery delays for other reasons.

6) BayWa r.e. is entitled to provide partial deliveries at all times.

7) The delivery terms always extend for the period for which the BP does not meet his obligation towards BayWa r.e., even if they should be based on different legal bases or other business transactions with him.

8) If the BP is in default of acceptance or in any other way violates his obligations to cooperate, BayWa r.e. is entitled to demand compensation for damages incurred, including possible addi-tional expenditures. Further contractual or legal claims are reserved.

9) If the matters of fact stated under clauses No. 7 or 8 or according to Section VI No. 4 or 5 of these terms have occurred, the risk for objects and prices, especially the risk of accidental de-struction or accidental deterioration of the goods, are transferred to the BP.


1) Upon communication of readiness for delivery the risk for objects and prices is passed to the BP and also, in addition to the cases specified in the preceding section IX, No. 9, as soon as the de-livery has been handed over to the person executing the transport, or if it has left the inventory of BayWa r.e. or the preliminary supplier (drop shipping) for the purpose of shipping or forwarding. This applies independently of whether forwarding or shipping is done under orders of BayWa r.e. or the BP.

2) Goods reported as ready for delivery must be retrieved immediately. If this does not happen, BayWa r.e. is entitled to choose whether to send them, on the expense and risk of the BP, or to store them at its sole discretion and to charge the BP with the storage costs.

3) In the case that BayWa r.e. has effected a transport insurance and the BP has fully met his payment obligations towards BayWa r.e. regarding the insured goods, BayWa r.e. assigns its claims against the insurer to the BP within the frame provided by legislation and the insurance contract, unless the assignment is not permissible according to the insurance contract or the regulations of the insurer or the German Insurance Contract Law (VVG) and other legal provi-sions.


1) The quality and measurements of the products that are subject of the transaction arise from the DIN norms or from material sheets, certificates, etc., and other product-specific standards and calculations, as long as no other norms, especially foreign norms, have been agreed upon or are the subject of the offer/order confirmation of BayWa r.e.. Should no DIN norms or material sheets, certificates, etc. exist, the according Euro norms apply; in the absence of these, trade practice applies.

2) The reference to norms, material sheets, or factory inspection documents of any kind, and/or the description of the deliveries that are subject of the contract with according specifications do not count as warranties for certain properties. Also, in case the delivery or performance is intended for a special type of use by the purchaser and it becomes the subject of the contract, this does not signify a warranty for properties either.
Should there be no explicit written communications in the according commercial documents of BayWa r.e., BayWa r.e. is not obligated towards the BP through guarantees of any kind or war-ranties for properties.

3) Liability through warranties for properties or other assumptions of guarantees is excluded in all cases which are not based on a written assurance by BayWa r.e..

4) BayWa r.e. may choose/determine the dispatch route and the means of transport at its own discretion if other specifications for shipping the products that are subject of the transaction should not be at hand.


The Installation Instructions are an integral part of all kind of contracts that deal with the mounting system novotegra respectively Creotecc or single parts of it. The Installation instructions are available at all times to download under


BayWa r.e. has the following obligations for supplementary performance for quality and quantity defects of the delivery item as well as for the lack of war-ranted properties, or in the case of wrong delivery:

1) The BP shall examine the delivery item immediately after delivery, with the thoroughness that can reasonably be expected of him under the given circumstances. The defects that can be de-termined here shall be declared immediately in due form, at the latest within seven days of dis-patch (Section II of these terms). The day on which BayWa r.e. receives this notification is deci-sive. Defects that cannot be discovered within this period despite of the most thorough examina-tion shall be declared immediately after discovery, while observing legal provisions and immedi-ately ceasing any treatment and processing. The duty of giving notice of defects also applies for such business relationships that are not based on the law for the sale of goods (e.g. those that are to be judged according to contracts for work and services, agency law, etc.). If the notice of defects is not given in time, the BP is excluded from asserting claims for supplementary perfor-mance. He bears the full burden of proof for any preconditions for claims, especially for the de-fect itself, for the time of identification of the defect, and for the timeliness of the notice of defects.

2) Upon justified and timely notice of defects BayWa r.e. will choose at its own discretion whether to deliver supplementary performance through rectification of defects or replacement.

3) Should the supplementary performance fail, the BP may as a rule demand to lower the price (reduction) or to cancel the contract (withdrawal). Should the infringement of contract be insignifi-cant, however, especially in the case of only slight defects, he has no right of withdrawal. Should he choose to withdraw from the contract due to a defect of title or material after a failed supple-mentary performance, he has no further entitlement to claims for damages due to the defect, un-less BayWa r.e. has acted with intent or gross negligence. Should the BP demand compensa-tion for damages after a failed supplementary performance, presuming an according fault on the side of BayWa r.e., the goods remain with the customer, if reasonable. The compensation for damages is limited to the difference between the purchase price and the value of the defective item. This does not apply if BayWa r.e. has violated a contractual primary obligation (cardinal ob-ligation) with intent or gross negligence.

4) If the BP does not immediately give BayWa r.e. the opportunity to convince itself of the defect, if he does not, especially on demand, immediately make the rejected contract subject or sam-ples/parts of it available, all legal guarantee claims cease to be effective.

5) For contract subjects that have been sold as declassed material, the BP has no rights to sup-plementary performance with regard to the indicated defects and such ones he would generally have to expect.

6) Any further mandatory claims of the BP resulting from product liability remain unaffected there-fore.

7) In case of defects occurring on so-called wear parts of products or units delivered by BayWa r.e., BayWa r.e. is generally only obligated to deliver replacements or perform rectifications at its own discretion, under exclusion of further claims. This also applies in the case of repeated spare part deliveries or replacements of wear parts within the limitation periods for claims for defects speci-fied within these terms, otherwise contractually agreed upon, or specified as mandatory in legal provisions. Replacement deliveries, additional deliveries, or replacements of wear parts have no suspensive effect, provided that no mandatory provisions of a law are opposed to this. Wear parts are such single parts/components which can be attested such a function/property accord-ing to the current opinion in the relevant circles (e.g. wires, bolts, winches, screws). This applies especially to such parts which, due to their usage, are particularly exposed to immission, accord-ing to their function (e.g. through moisture, heat, fire, storms, and similar weather effects) and/or need to be exchanged during the operation of the system.

8) BayWa r.e. shall carry the transport, travel, labour, installation, and material costs that are incurred during supplementary performance.


1) Unless these terms contain no other regulations or they are not opposed by a mandatory provision of a law, BayWa r.e. shall be liable for damages resulting from the violation of contrac-tual or non-contractual obligations only in cases of intent or gross negligence. The liability for slight negligence, as well as the liability for gross negligence of BayWa r.e. employees, is ex-cluded, except in case of violation of a cardinal obligation in the legal sense. The exclu-sion/limitation of liability stipulated hereby also applies to damages caused by delays or defer-rals.

2) The liability of BayWa r.e. – except in cases of intent – does not include such damages which could not typically be expected for the business at hand, or against which the BP is insured, or can usually be insured against. The liability for consequential damages caused by defects is, in all cases, excluded for slight negligence, and also for gross negligence to the extent permitted by law.

3) All claims based on defects against BayWa r.e. expire one year after the delivery, under ob-servance of the specifications in Section VIII, unless BayWa r.e. has admitted other (longer) limi-tation periods in the individual case, or such apply due to mandatory provisions of a law.


1) All physical objects of services or deliveries (products/goods) remain the property (reserved property) of BayWa r.e. until the fulfilment of all receivable claims, including incurred claims that fall due at a later time or conditional claims. This also applies if payments are made for specially designated claims. In case of a current account, the reserved property is seen as a security for the balance claim.

2) BayWa r.e. can prohibit the sale and/or incorporation and/or mixing of the reserved item(s) at any time if the customer has defaulted or fallen behind on his payment obligations towards it, or if he has become insolvent.

3) In case the reserved item(s) is (are) mixed, processed, and/or incorporated with other chattel not belonging to BayWa r.e., BayWa r.e. is entitled to ownership of the new item to the amount of the ratio between the invoice value of the reserved item and the invoice value of the other item, or new item, including the expenditures for processing (incorporation, mixing). Should the invoice value of the other item not be known, its value shall be calculated according to principles of ade-quacy.

4) Treatment and processing of the reserved item take place with BayWa r.e. as the producer, without obliging BayWa r.e.. The processed item is seen as a reserved item according to these terms. If the contract item is processed with other objects that do not belong to BayWa r.e., BayWa r.e. acquires co-ownership of the new item to the amount of the ratio between the value of the purchase item (final invoice amount including VAT) and the other processed objects at the time of processing. The same applies for the item being created through processing as applies for the purchase item delivered with reservation of ownership.

5) If the BP is a business person who resells unprocessed or processed items, he is entitled to resell the reserved item in the regular course of business. He already assigns his claims from the resale to BayWa r.e. to the amount of the invoice value of the reserved item. The authorization for resale depends on the legal validity of the assignment of claims. This correspondingly applies to the case in which the reserved item is used by the BP for the fulfilment of a contract for work and services/materials, and especially to construction companies; here the claim from the con-tract for work and services/materials is also assigned to BayWa r.e. in advance, to the amount of the invoice value of the reserved item. The authorization for processing its item depends on the legal validity of the assignment of claims.

6) The BP is not entitled to convey the reserved item to third parties, to pledge it, or to use it for barter transactions. Furthermore, he is not permitted to assign the claims assigned to BayWa r.e. due to the extended reservation of title to a factor bank as a factoring customer, unless the factor bank directly takes on the payment obligations of the customer. Additionally, the assignment/sale of the claim assigned due to the extended reservation of title to the factor bank requires the writ-ten approval of BayWa r.e..

7) If the debtors (garnishees) pay the BP for the claims assigned to BayWa r.e. due to the extended reservation of title with cheques or other payment surrogates, the property/ownership of this cheque or surrogate is transferred to BayWa r.e. as soon as the BP has obtained it.

8) BayWa r.e. is entitled to collect claims from resale until revocation, which it is entitled to at all times and which can be made even verbally. If demanded, the BP is obligated to inform the gar-nishee about the assignment to BayWa r.e. and to notify BayWa r.e. about the notification, as well as to transmit the information and documents necessary for collecting the assigned claims along with this notification. BayWa r.e. must be informed immediately by the BP about attach-ment or other disturbances through third parties.

9) The assertion of the reservation of title, especially the retrieval of contract items, the collection of claims from third parties, does not count as a withdrawal from the contract. BayWa r.e. is espe-cially entitled to take back the reserved item without having to withdraw from the contract, if the purchaser of the reservation has exceeded the allowed term of payment, or has not paid other liabilities existing towards BayWa r.e. on time, or is in default, or does not keep his obligations resulting from these business terms.

10) If the BP puts his claims from a resale of such materials, for which BayWa r.e. is entitled to simple, extended, or prolonged reservation of title, into a current account relationship, he hereby assigns to BayWa r.e. his current account receivables to the amount of the value of the reserved items. If balancing has been completed, the recognized balance takes its place, which is seen as assigned to the amount which made up the original current account receivable.

11) The BP also assigns BayWa r.e. those claims for securing BayWa r.e.’s claim against him which are accrued against third parties from the connection of the reserved purchase item with a real estate, to the amount of the invoice value of the purchase item.

12) BayWa r.e. undertakes to release the securities it is entitled to upon demand of the BP to such an extent as the realized value of their securities exceeds the claims to be secured by more than 10%; BayWa r.e. chooses the securities to be released at its own discretion.


In addition to the cases specified in Section VIII No. 4 and 5, and the ones specified in the Luxembourgish law and jurisdiction, BayWa r.e. is entitled to withdraw from the contract without further notice if the BP has fallen into default with his payment obligations from the business transaction or other business transactions with BayWa r.e. Any further claims for damages by BayWa r.e. remain unaffected thereof.


Personal data, communicated by the BP to BayWa r.e in the context of the commercial relations are treated in conformity to the EU regulation 2016/679 of the European parliament and the Council of April 27 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR).
BayWa r.e. may collect personal data in the course of its activities, in particular when the BP uses its website, when it contacts BayWa r.e. or requests information from it, when it enters into contracts or other. The data is only accessible to members of the staff of BayWa r.e for the needs of the execution of the contract(s) concluded with the BP.
Such data is only kept for the duration required to the needs which motivated the collection of the data. Natural persons whose data has been communicated are informed that they benefit from a right of access (article 15 GDPR), of rectification (article 16 GDPR) and cancellation (article 17 GDPR) of the information related to them. They can also oppose the treatment of their data within the conditions as foreseen by article 21 GDPR and obtain a limitation of such treatment within the conditions as foreseen by article 18 GDPR.
Detailed information on data processing and the rights of data subjects can be found at Requests for access, rectification, cancellation, limitation or opposition to the treatment made by BayWa r.e in its capacity as responsible of the treatment are to be addressed by email to [email protected]


The place of fulfilment for all deliveries and services by BayWa r.e. is the place of business of BayWa r.e.


The place of jurisdiction for all disputes arising from a business transaction between BayWa r.e. and the BP is the registered office of BayWa r.e., provided that the BP is a business person, or a legal entity under public law, or a separate estate under public law. This also applies to disputes arising from legal obligations that have their origin in the business transaction between BayWa r.e. and the BP. However, BayWa r.e. is also entitled to take action against the BP at his general place of jurisdiction.


Should one (or more) term(s) of this complex of terms and conditions be invalid or become invalid, the legal validity of the remaining terms remains unaffected thereof. The relevant legal provisions shall take the place of the invalid term, if they are not legally waived by the remaining terms.


The law of the Grand Duchy of Luxembourg, excluding the UN CISG, shall be exclusively applied to the legal relationships between BayWa r.e. and the BP. 

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