of the company BayWa r.e. Solar Systems Ltd. (hereinafter referred to as BayWa r.e.)
Dated: February 2016
I. SCOPE OF THESE TERMS
1) These terms of delivery and payment (hereinafter: terms) only apply to compa-nies 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. (herein-after referred to as business partner – BP). They apply to all legal transac-tions/deals, including all corresponding secondary and auxiliary transactions, 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 (deliveries 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 informed him about the limitation upon the closing of the transaction and instructed him about its contents.
II. INCLUSION / FORM / CONFLICTING TERM COMPLEXES
1) These terms become the subject of the transaction with the BP through indica-tions/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 applicable.
2) Otherwise they become the subject matter of the contract through the uncon-tested acceptance of the offer by BayWa r.e. or through the receipt of the decla-ration of acceptance by BayWa r.e. for a preceding offer (order) of the BP, upon reference to the terms in the declaration of acceptance, or through the uncon-tested acceptance of the order confirmation of BayWa r.e.
3) All declarations, notifications, announcements, confirmations, acceptances, and similar communications to which these terms refer are only legally effective if they have been delivered in written 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 compli-ance with these formal requirements, the according statements will have no le-gal effect.
The same applies in case of changes or amendments to these conditions (Sec-tion IV 5). Business 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 in-dividual cases were business transactions 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 reference in orders, contract letters, declarations of acceptance, and the like, if they are not consistent 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. con-tain no regulations.
This objection also applies to future business transactions.
III. OFFER AND CONTRACT CONCLUSION / ORDER CONFIRMATION
1) The offers of BayWa r.e. are subject to change, provided that they have been explicitly designated 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 con-cluded.
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 confirma-tions 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 agreements 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.
IV. OFFER DOCUMENTS
1) BayWa r.e. reserves the proprietary rights and copyrights to its drawings, imag-es, 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 docu-ments 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 com-munications 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 confirma-tions, the prices used as a basis are ‘ex works’ or ‘ex office’ from the responsi-ble BayWa r.e. operating site, excluding packaging and transport costs, as well as possible insurance charges (transport insurance), which are calculated sepa-rately. 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 equiva-lent 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.
VI. PAYMENT OF PURCHASE PRICE / MATURITY / DEFAULT
1) The fee to be paid by the BP, without need for further invoicing, becomes paya-ble upon issuing of the order confirmation, even if it is not additionally designat-ed 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 contem-poraneous 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 circumstances become known that reasonably put into ques-tion 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 reserva-tion of title to the agreed extent, or to the extent stated in these terms, without the precondition of default having to be given on the customer side, and without an obligation to withdraw from the contract.
5) 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.
6) 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 validation/redemption of a payment surrogate. Bay-Wa r.e. is not obliged to accept such surrogates (cheques, etc.), unless they are confirmed/backed as customary. Such surrogates are only accepted on ac-count of performance in all cases. Credits to the business cheque account of BayWa r.e. only count as definitive validations if their reclamation is no longer possible or is no longer permissible according to the legal rules for national and/or international transactions of payments.
VII. INTRA COMMUNITY SUPPLY / ENTRY CERTIFICATION
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 recalculat-ed.
VIII. SET-OFF / RETENTION OF GOODS / NON-ASSIGNMENT
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 appli-cable 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 supplementary performance, damages, and other counterclaims, or to exer-cise 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.
IX. TERMS OF DELIVERY
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 acceptance of the offer of BayWa r.e. or with the acceptance by BayWa r.e., but not before the provision of the documents, per-missions, or clearances to be procured by the BP, or before the receipt of the due advance payment (advance performance) according to these terms or set-tled 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 per-formed, 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 include subsequently occurred difficulties during mate-rial procurement, traffic disturbances, including those of international goods traf-fic, namely of imports, operative disruptions, strikes, lockouts, other official or-ders for which BayWa r.e. is not to be held responsible, also insofar as these occur 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 adequate 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 excluded. The same ap-plies 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 le-gal 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 in-curred, including possible additional 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, espe-cially the risk of accidental destruction or accidental deterioration of the goods, are transferred to the BP.
X. PASSING OF RISK / ASSIGNMENTS OF INSURANCE CLAIMS
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 delivery has been handed over to the person executing the transport, or if it has left the inventory of BayWa r.e. or the prelim-inary supplier (drop shipping) for the purpose of shipping or forwarding. This ap-plies 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 ex-pense 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 provisions.
XI. QUALITY, MEASUREMENTS, PROPERTIES, DISPATCH ROUTES
1) The quality and measurements of the products that are subject of the transac-tion 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 of-fer/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 warranties 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.
XII. INSTALLATION INSTRUCTION
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 solarenergysystems.baywa-re.com/en/novotegra/
XIII. NOTICE OF DEFECTS / SUPPLEMENTARY PERFORMANCE
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 circum-stances. The defects that can be determined here shall be declared immediately in due form, at the latest within seven days of dispatch (Section II of these terms). The day on which BayWa r.e. receives this notification is decisive. De-fects that cannot be discovered within this period despite of the most thorough examination shall be declared immediately after discovery, while observing legal provisions and immediately 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 accord-ing to contracts for work and services, agency law, etc.). If the notice of de-fects is not given in time, the BP is excluded from asserting claims for supple-mentary performance. He bears the full burden of proof for any preconditions for claims, especially for the defect 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 in-fringement of contract be insignificant, 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 supplementary per-formance, he has no further entitlement to claims for damages due to the de-fect, unless BayWa r.e. has acted with intent or gross negligence. Should the BP demand compensation for damages after a failed supplementary perfor-mance, presuming an according fault on the side of BayWa r.e., the goods re-main 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 obli-gation (cardinal obligation) 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 samples/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 supplementary 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 therefore.
7) In case of defects occurring on so-called wear parts of products or units deliv-ered by BayWa r.e., BayWa r.e. is generally only obligated to deliver replace-ments or perform rectifications at its own discretion, under exclusion of further claims. This also applies in the case of repeated spare part deliveries or re-placements of wear parts within the limitation periods for claims for defects specified 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 according 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, according 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.
XIV. GENERAL LIMITATION OF LIABILITY / STATUTE OF LIMITATIONS
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 contractual or non-contractual obligations only in cases of intent or gross negligence. The liability for slight negligence, as well as the liabil-ity for gross negligence of BayWa r.e. employees, is excluded, except in case of violation of a cardinal obligation in the legal sense. The exclusion/limitation of liability stipulated hereby also applies to damages caused by delays or deferrals.
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 deliv-ery, under observance of the specifications in Section VIII, unless BayWa r.e. has admitted other (longer) limitation periods in the individual case, or such ap-ply due to mandatory provisions of a law.
XV. RESERVATION OF PROPRIETARY RIGHTS
1) All physical objects of services or deliveries (products/goods) remain the proper-ty (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 re-served 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 re-served 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 adequacy.
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 re-served 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 ob-jects 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 al-ready assigns his claims from the resale to BayWa r.e. to the amount of the in-voice value of the reserved item. The authorization for resale depends on the le-gal 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 contract 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 as-signment 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 re-quires the written 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 surro-gates, the property/ownership of this cheque or surrogate is transferred to Bay-Wa 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 garnishee 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 noti-fication. BayWa r.e. must be informed immediately by the BP about attachment 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 especially entitled to take back the reserved item without having to withdraw from the contract, if the purchaser of the reser-vation has exceeded the allowed term of payment, or has not paid other liabili-ties 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 re-ceivables 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 as-signed 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.
XVI. RIGHT OF WITHDRAWAL
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.
XVII. PLACE OF PERFORMANCE
The place of performance for all deliveries and services by BayWa r.e. is the place of business of BayWa r.e.
XVIII. PLACE OF JURISDICTION
The place of jurisdiction for all disputes arising from a business transaction be-tween 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 sepa-rate estate under public law. This also applies to disputes arising from legal obli-gations 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.
XIX. SEVERABILITY CLAUSE
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.
XX. LUXEMBOURGISH LAW
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.