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| Terms and Conditions |
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GENERAL DELIVERY AND PAYMENT CONDITIONS of Jetion Solar (Europe) Ltd. § 1 GENERAL CONDITIONS a) We only sell to companies, legal entities under public law, and public special funds. Our General Delivery and Payment Conditions (GDPC) apply to all sales contracts that we enter into with this group of entities. They do not apply with respect to consumers. b) Exceptions to this GDPC shall require our express acknowledgement in writing. This particularly applies to the validity of general business terms for buyers. § 2 TENDERS, ORDERS, DELIVERIES, DELIVERY DEADLINES, AND PARTIAL DELIVERIES a) Our tenders are non-binding. Orders are only binding upon us if we confirm them in writing or fulfil them by dispatching the merchandise. We can accept buyers’ orders for delivery up to 2 weeks inclusive. Additional oral agreements are only binding where confirmed in writing. b) Except where otherwise agreed on, our deliveries are understood as ex-warehouse Ostrau, Germany or from the Rotterdam free port, which also serves as place of delivery. In so far as we organise merchandise dispatch on customer behalf, we reserve choice of forwarding agent. Dispatch costs are to be borne by the buyer. c) Where delivery periods and dates agreed on are not binding, the usual non-binding delivery period consists of 8 weeks. Delivery periods are subject to the proper and timely availability of raw materials, unless we guarantee them as binding. The reservation shall not apply where such availability is interrupted for reasons that we are held responsible for. d) Delivery periods begin on the date of conclusive, complete confirmation. Delivery periods are observed where we keep the merchandise ready for punctual dispatch at warehouse or port and/or release it for punctual dispatch upon the wishes of the buyer. e) We are entitled to partial deliveries and partial performance where this is reasonable to the buyer. We shall take his rightful interests into consideration. Partial deliveries shall be agreed upon with the buyer. § 3 RISK CONVEYANCE a) The risk of accidental loss and deterioration of the merchandise, even in the event of partial deliveries, is conveyed, at the latest, upon its turnover to the buyer, the freight forwarder or other person or establishment designated to carry out the dispatch. b) Should the delivery or performance be delayed due to circumstances for which the buyer is responsible, the risk is conveyed to the buyer upon notification of readiness for shipment. § 4 RESERVATION OF OWNERSHIP a) We reserve ownership of the merchandise for sale up to complete payment of all present and future debts arising from the purchase contract and current trade relations (secured debts). b) The buyer is obliged to perform all the possible actions that may be required in order to enforce absolute reservation of ownership in accordance with § 4 at the merchandise warehouse. To the extent that our collaboration may be necessary for the purpose, he must send us corresponding notification. Where our distinctive markings may be necessary or helpful for the effect or validity of the reservation of ownership, the buyer may not remove these from the merchandise until full payment has been made. In so far as protracted reservation of ownership may not be acknowledged in a country, if the merchandise is for resale, we shall conclude a consignment agreement with the buyer; i.e., the merchandise shall only be consigned with, but not sold to the buyer. The buyer shall, in this case, conclude the sales contract with his customers in our behalf, assuming del credere risks for an amount in excess of the sale price agreed upon between him and ourselves. We shall settle the difference immediately with him. c) The merchandise under reservation of ownership may neither be pledged to third parties nor transferred as security before complete payment of the secured debts. The buyer must inform us in writing of any third-party attachments on the merchandise belonging to us. d) The buyer is authorised to resell and/or process the merchandise under reservation of ownership in the proper course of business. In this case, the following additional conditions shall apply: aa) The reservation of ownership extends to the products resulting from the processing, mixture or connection of our merchandise to their full value, whereby we are considered manufacturers. Should a third party holding proprietary rights in such processing, mixture or connection exist, we shall acquire co-ownership with regard to the invoice value of the processed, mixed or connected merchandise. Otherwise, the same conditions shall apply to the resulting product as for merchandise delivered under reservation of ownership. bb) The buyer conveys the collectibles against third parties ensuing from the resale of the merchandise or the resulting product to us completely, or up to the amount of our possible share in co-ownership as per Section aa) above. We accept the conveyance. The duties of the buyer set forth in Sections b) and c) also apply with regard to the collectibles conveyed. cc) Aside from us, the buyer is authorised to collect claims. We commit ourselves not to collect claims provided that the buyer complies with his payment obligations in our regard, does not incur in payment delays, is not subject to any opened insolvency procedures, and has no other failing as regards his performance. However, should this not be the case, we can then require the buyer to inform us of the claims and debtors conveyed, give us the details necessary for collection, hand over the pertinent documents, and inform the debtors (third parties) of the conveyance. dd) Should the value of the securities exceed our claims by over 20 %, we shall be obliged at the buyer’s request to release securities at our choice to such extent. d) As long as we are the owners of the merchandise, the buyer must secure and insure this appropriately against theft, loss, damage and destruction. § 5 PRICES AND PAYMENT TERMS a) Unless otherwise agreed on, our prices are understood in EURO ex-warehouse or from the Rotterdam Free Port, inclusive of packaging and loading, albeit not including whatever sales taxes may be legally due. The packaging (without container) becomes the property of the buyer. We calculate separately the sales/import taxes respectively due, the transport costs from warehouse or port and the costs of specially-requested transport insurance by the buyer as per circumstances. Possible duties, fees, taxes and other public dues are likewise borne by the buyer. b) We calculate the price agreed on in each case. c) We only deliver on advanced payment. The buyer is obliged to pay our invoices without delay immediately upon receipt. d) Should the buyer not pay promptly before merchandise delivery, we are entitled to withhold such delivery. Should we deliver despite non-fulfilment of these terms, we shall be entitled to demand overdue payment interest at 5 %, and default interest at 8 percentage points above the basic interest applicable to the case when default has occurred. In so far as we can demand damage compensation from the buyer due to delayed or outstanding payment of the sale price, he is also obliged to reimburse all the expenses reasonably incurred in legal suits and execution (especially, but without being limited to, lawyers’ fees for pre-judicial representation and correspondence, collection and/or court costs), apart from the sale price and its interests. e) We accept drafts, cheques or other payment orders only for processing. The charges and costs for these, as well as the risks of timely presentation and protest, are exclusively borne by the buyer. f) The buyer shall only be able to offset accounts or exercise rights of retention with undisputed or established non-appealable claims. § 6 WARRANTY a) The legal provisions in force, including those of the UN Sales Convention, apply to the rights of the buyer as regards defects in quality and title unless other provisions are stipulated below. b) Our liability for defects is based above all on the agreement entered into regarding merchandise composition. Our Product Data Sheets, which the buyer can consult over the internet at (www.Jetion.biz), are valid as merchandise composition agreements. c) No warranty undertaking attaches to a merchandise composition agreement. We only assume special guarantees on the basis of special agreements regulating the content and scope of the guarantee separately from these General Conditions and the legal rights of the buyer. d) Where composition has not been agreed on, the merchandise is considered free of defects if it suits the application set forth in the contract. For the rest, the merchandise is considered free of defects if it shows the features that a buyer residing in Germany can expect as per our published Product Data Sheets (to be downloaded at www.Jetion.biz), for the use/sale of the product in Germany. We nonetheless assume no liabilities for the public statements of third parties (for ex., advertisements of dealers, project developers, installation companies, etc.). e) Enforcement of legal remedy by the buyer is subject to his fulfilment of the obligation to investigate and notify. Should a defect emerge in the course of the investigation or afterwards, the buyer must report this to us within a reasonable period. Such reporting is considered reasonable if it is made within two weeks. Apart from the aforementioned obligation to investigate and notify, the buyer must report evident defects (including mistaken and short deliveries) in writing within two weeks from delivery. Timely dispatch of the pertinent report suffices as observance of the term. Reports must be made in writing. We are not liable for unreported defects if the buyer abstains from reporting the existing defects found. f) Should the product delivered be defective, we shall be able to choose whether to comply by resolving the defect (subsequent improvement) or delivering a fault-free product (substitution). Our right to refuse the chosen type of compliance under the legal conditions for doing so remains unaffected. We shall bear the expenses necessary for the purpose of compliance, in particular, transport, infrastructure and material costs. We shall reimburse the buyer’s necessary expenses in this regard immediately. In the event of substitution, the buyer must place the defective product at our disposal. g) Should our efforts at subsequent improvement fail, or should a deadline set by the buyer for subsequent improvement lapse without successful results, the buyer may cancel the sales contract or lower the sale price (price reduction). The right to cancel the contract only exists, however, if our failure to comply represents an actual breach of contract. Cancellation or reduction voids the buyer’s claim to the delivery of a fault-free product. h) Buyer claims to compensation for damages only exist in accordance with § 8; otherwise, they are out of the question. The Jetion Warranty as per separate document does not apply to second-class products expressly denominated B and C merchandise. § 7 OTHER LIABILITY a) In so far as nothing else is provided for in these General Conditions, including the following, in the event of breach of contractual and non-contractual obligations, we shall be liable as per the legal provisions pertinent to each case. b) We shall be liable only for damages caused intentionally or through gross negligence, for whatever legal grounds. In addition, we are also liable, in case of simple carelessness: • for damages due to injury to life, body or health, • for damages due to breach of an essential contractual duty; however, in this case, our liability is limited to the compensation of the usual foreseeable damages. The above liability limitations shall not apply if we maliciously conceal a defect or have accepted to guarantee merchandise composition. The same applies to the buyer claims as per the Law on Product Liability. c) The buyer may demand cancellation of the contract due to breach of obligations if we are responsible for the breach. Cancellation or termination must be explained in writing. For the rest, the conditions and consequences set forth in law shall apply. § 8 LIMITATIONS a) The reciprocal claims of the parties to the contract shall expire as provided for by law, in so far as nothing else is determined below. b) The general limitations for claims due to quality and legal defects consist of one year starting from delivery. c) The legal term of limitation (§ 438 Par. 1 No. 2 German Civil Code) applies to newly manufactured products employed for a construction according to their habitual use that have caused its defect. d) In all cases of malice (§ 438 Par. 3 German Civil Code), the legal regulations on limitations shall remain applicable. f) In so far as we may owe the buyer contractual compensation because, or as a result of, a defect as per § 7, the unabridged legal limitation terms of the Sales Law (§ 438 German Civil Code) shall be applicable. These limitation terms also apply to concurrent non-contractual damage compensation claims if the application of the normal legal limitations (§§ 195, 199 German Civil Code) in a given case leads to a shorter term. The limitation terms of the Product Liability Law remain applicable. § 9 COMMUNICATION We are entitled to communicate the conclusion and/or execution of the contract to third parties, in particular, in order to inform on our website or to publicize by means of press releases. In doing this, we are allowed to use the customer’s company and a generally employed word/logo (by way of a simple, non-exclusive licence not limited in space or time) and to name the project concerned. This licence is granted by the buyer at no cost. The buyer must procure any possible third-party rights (architects, owners, clients, etc.) at his own cost and release us from all third- party claims in the event of third-party recourse. § 10 CONFIDENTIALITY AND CHOICE OF LAW AND JURISDICTION a) Should the buyer make information available to us in the context of business relations, these shall not be considered confidential unless otherwise expressly agreed on in writing. The buyer commits himself not to make the prices agreed on with us known to third parties without our previous consent in writing. b) The laws of the Federal Republic of Germany shall apply to these GDPCs and all the legal relations between us and the buyer. c) The jurisdiction for all conflicts directly or indirectly arising from the contractual relationship is the regional court of the address of our logistics service provider in 04749 Ostrau, Germany. Status: February 2011 |
