1.1 The General Terms and Conditions set forth below shall apply exclusively to all purchase contracts, contracts for work and materials, contracts for work and materials, and contracts for services between Q ENERGY Europe* or "the Company" - and its contractors - hereinafter referred to as "Contractors ".
1.2 Any terms and conditions of the Contractor that conflict with, supplement or deviate from these Terms and Conditions shall only become part of the contract if the Company expressly acknowledges them in writing.
PURCHASE, WORK AND WORK DELIVERY CONTRACTS
2. EXECUTION DOCUMENTS, COPYRIGHTS AND CONFIDENTIALITY
2.1 The Contractor undertakes to keep confidential any information contained in drawings, documents, findings, samples, means of production, models, data carriers etc. provided to it by the Company and not to make them available to third parties (including subcontractors), reproduce them or use them for any purpose other than the contractually agreed purpose without the Company's consent. This obligation of secrecy shall also apply after the execution of the contract.
2.2 The obligation to maintain secrecy pursuant to section 2.1 shall not apply to information which is or becomes publicly known or which was already known to the contractor without a breach of contract by the contractor being or having been the cause thereof.
2.3 The ownership, copyrights and all other rights to the information, documents and objects made available by the Company shall remain with the Company. The Contractor shall carefully store, maintain and insure the documents and items made available to it at its own expense and shall return or destroy them at any time at the Company's request. He shall not be entitled to a right of retention, irrespective of the reason. The complete return or destruction shall be insured in writing.
2.4 The Contractor shall only be permitted to refer to the business relations existing with the Company in information and advertising material with the express written consent of the Company.
2.5 The Contractor shall be liable for all damages incurred by the Company as a result of a breach of any of the obligations set out in Clauses 2.1 to 2.4.
3. OFFER OF THE CONTRACTOR
3.1 The Contractor shall adhere precisely to the enquiry in the offer and, in the event of deviations, expressly point this out.
3.2 Costs for packaging as well as for customs clearance and customs duty shall be stated separately in the Contractor's offer.
3.3 If the Contractor has reservations about the desired type of execution, he shall inform the Company of this in writing without delay.
3.4 Offers and cost estimates of the Contractor shall be made free of charge.
4. APPOINTMENT OF THE COMPANY
4.1 Orders and order changes of the Company shall be made in writing. The content of oral or telephone orders and order changes shall only be binding if they have been confirmed in writing by the Company without delay.
4.2 Each order and order change of the Company shall be confirmed by the Contractor in writing, stating the complete document number, the transaction number and the order date.
4.3 The obligation to take back packaging shall be governed by the statutory provisions.
5. DELIVERY, DELIVERY DATE, DELAY IN DELIVERY
5.1 The Contractor shall inform the Company of the necessary permits and notification requirements for the import and operation of the delivery items.
5.2 The Contractor shall choose the most suitable means of transport for the Company. If the Customer bears the transport costs, the Contractor shall choose the most favourable of the most suitable transport options.
5.3 If, in derogation of Clause 6, the risk passes to the Company before handover or acceptance or if, in derogation of Clause 8.4, the Company has already made a down payment, the Contractor shall be obliged to insure the delivery items against the usual transport risks at its own expense.
5.4 The delivery shall be accompanied by a delivery note stating the complete document number, the transaction number and the order date.
5.5 The agreed delivery dates are binding. Decisive for the timeliness of a delivery is the date of receipt at the Company or at the receiving point specified by the Company.
5.6 As soon as the Contractor realises that it will not be able to fulfil its contractual obligations in whole or in part or not in time, it shall notify the Company thereof in writing without delay, stating the reasons and the expected duration of the delay.
5.7 In the event of a delay in delivery, the Company shall be entitled to claim liquidated damages for the delay amounting to 1% of the value of the delivery per full week, but not more than 10% of the total order value of the delivery. The Company reserves the right to claim further damages. The Contractor shall be entitled to prove to the Company that no damage or significantly lower damage has been incurred as a result of the delay.
5.8 If the contractual services or parts of the contractual services are rejected as not being in accordance with the contract on or after handover or acceptance, the Contractor shall be obliged to collect the contractual services / partial services immediately at its own expense. The Company shall be entitled to return the contractual services / partial services to the Contractor at the Contractor's expense after a reasonable collection period has elapsed.
6. PLACE OF PERFORMANCE AND TRANSFER OF RISK
6.1 The place of performance for all deliveries and services of the Contractor shall be the place of receipt determined by the Company. The transfer of risk shall not take place until the handover or acceptance of the performance. In the case of deliveries with installation or assembly, the risk shall pass on the day of successful acceptance or, if agreed, after faultless trial operation.
6.2 If the delivery or service is rejected as not being in accordance with the contract on or after handover or acceptance, the risk shall only pass to the Company on handover or acceptance of a delivery or service in accordance with the contract.
7. RETENTION OF TITLE BY THE CONTRACTOR
Only a simple reservation of title on the part of the contractor is recognised, but not an extended reservation of title, a current account reservation or any other special form of reservation of title.
8. PRICES, BILLING AND PAYMENT
8.1 The agreed prices are fixed prices and exclude subsequent claims of any kind. Price increases, for whatever reason, shall only be deemed to have been accepted if they have been confirmed in writing by the Company.
8.2 Invoices must correspond to the order of the text and prices of the purchase orders and are to be submitted to the Company after delivery / performance has taken place, stating the complete voucher number and the transaction number. Any excess or shortfall in performance shall be listed separately in the invoice. Invoices which have not been properly submitted shall only be deemed to have been received by the Company from the time of correction.
8.3 Insofar as certificates of material tests are agreed or necessary, they shall form an integral part of the delivery and shall be sent to the Company together with the invoice.
8.4 Unless otherwise agreed, payment shall be made in the customary manner within 14 days with 2% discount or after 30 days net. The payment period shall run from the date specified, but at the earliest from receipt of a proper invoice. If the invoice is received before the delivery or service, the payment period shall commence at the earliest upon receipt of the contractual delivery or service.
9.1 The Contractor shall ensure that it is aware in good time of all data and circumstances relevant to the performance of its contractual obligations and of the Company's intended use of its delivery.
9.2 The Contractor warrants that its supplies and services include all services necessary for proper, safe and economic use, that they are suitable for the intended use and that they comply with the state of the art in science and technology.
9.3 The Contractor warrants that the delivery item does not have any defects impairing its value or suitability, that it has the agreed or guaranteed quality and that it is suitable for the use presumed under the contract. The Contractor's warranty also extends to the parts manufactured by subcontractors and their performance.
9.4 If the delivery item does not meet the above requirements, the Company may demand that the defect be remedied or that a defect-free item be delivered, withdraw from the contract in accordance with the statutory provisions, reduce the purchase price or demand compensation for damages or reimbursement of futile expenses. If the Contractor has assumed a guarantee for the quality or durability of the delivery item, the Company may also assert claims under the guarantee.
9.5 The goods shall be inspected by the Company for quality and completeness after receipt or acceptance to the extent reasonable and technically possible for the Company. Notifications of defects shall be deemed timely if they are made within one week by letter, fax, e-mail or telephone. The period for notification of defects shall commence at the time at which the Company has detected or should have detected the defect, i.e. in the case of an obvious defect from acceptance of the delivery, in the case of a concealed defect from discovery of the defect.
9.6 The statutory limitation provisions shall apply to warranty and guarantee claims.
10. QUALITY ASSURANCE / SAFETY REQUIREMENTS
10.1 The Contractor shall be obliged to observe all relevant standards, laws and legal provisions, in particular the relevant environmental protection, hazardous substances, hazardous goods and accident prevention regulations, as well as to comply with the generally recognised safety and occupational health rules when providing the services.
10.2 Standards, laws and legal regulations in the sense of the first paragraph are in particular the requirements:
- of the Equipment Safety Act (GSG),
- the 9th Ordinance to the Equipment Safety Act (9th GSGV - Machinery Ordinance),
- the 4th Ordinance to the Equipment Safety Act (4th GSGV - Machinery Noise Information Ordinance),
- the Low Voltage Ordinance, the EMC Ordinance as well as
- the minimum requirements of the Work Equipment Usage Ordinance (AMBV) and
- of the underlying technical rules according to the declaration of conformity or the manufacturer's certificate according to the 9th GSGV.
Technical work equipment that is not machinery within the meaning of the 9th GSGV must, in particular, meet the quality requirements of the applicable accident prevention regulations.
10.3 If necessary, the Contractor shall conclude a corresponding quality assurance agreement with the Company.
10.4 A declaration of conformity must be available for machines, which refers to the entirety of the delivered machines of the same type including additional equipment. All machines must visibly bear a CE mark.
10.5 An operating manual in accordance with the applicable Q ENERGY Solutions QM Procedural Instructions for "Plant Manuals and Documentation " with safety-related instructions for operation and maintenance and the necessary descriptions and planning documents must also be supplied. The operating manual must contain a risk assessment in accordance with § 5 ArbSchG, from which the necessary protective measures during operation must be evident.
10.6 The above obligations are part of the contract. If the obligations are not observed, the contract shall be deemed not to have been properly fulfilled and the Company shall be entitled, among other things, to assert claims for damages under the Product Liability Act.
11. PROPRIETARY RIGHTS
11.1 The Contractor shall be liable for ensuring that patents, licences or other industrial property rights of third parties are not infringed by the delivery and use of the delivery items and shall indemnify the Company against any claims of third parties. The Contractor's indemnity shall relate to all expenses and damages incurred by the Company from or in connection with the claim by a third party.
11.2 Any licence fees shall be borne by the Contractor.
12. SAFETY INSTRUCTIONS
12.1 The Contractor is obliged to observe the general safety regulations of Q ENERGY Europe when making deliveries and carrying out other work on the Company's premises.
12.2 When intervening in existing systems with hazardous substances, the current Q ENERGY Europe procedural instructions "Working on systems with hazardous substances" must be observed.
13. DATA SECURITY
The Company shall be entitled to store and evaluate all necessary data, whether personal or factual, in accordance with the Federal Data Protection Act. Separate notification by the Company shall not be made. The Contractor undertakes to treat data about the Company's business in accordance with the Federal Data Protection Act.
14. JURISDICTION, APPLICABLE LAW
14.1 The law of the Federal Republic of Germany shall apply to all legal relationships arising between the Company and the Contractor or its legal successors. The application of the regulations on the international sale of goods (UN Convention on Contracts for the International Sale of Goods) and German international private law is expressly excluded.
14.2 If the Contractor is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), Berlin shall be the exclusive place of jurisdiction, unless another place of jurisdiction is mandatory pursuant to Section 40 (2) of the German Code of Civil Procedure (ZPO).
15. CLAUSES APPLICABLE TO CONTRACTS OF SERVICE
Clauses 2, 3, 4, 5.5, 5.7, 8, 12, 13, 14 and 15 shall apply mutatis mutandis to contracts for the provision of services. In all other respects, the statutory provisions shall apply to contracts for the provision of services.
16. CONTINUED VALIDITY IN THE EVENT OF PARTIAL INVALIDITY
If any provision of these terms and conditions is void for any reason, the validity of the remaining provisions shall not be affected.
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GENERAL TERMS AND CONDITIONS
The following provisions govern the contractual relationships for the sale of photovoltaic modules and other goods (hereinafter referred to as "goods") between Q ENERGY Europe GmbH (hereinafter referred to as "Q ENERGY Europe") and entrepreneurs, i.e. natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who are acting in the exercise of a commercial or independent professional activity (hereinafter referred to as "Buyer"). Any other terms and conditions of the Buyer shall not be valid. Exceptions are possible with the written consent of Q ENERGY Europe. By concluding the contract, the Buyer accepts these terms and conditions. The Terms and Conditions shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. CONCLUSION OF CONTRACT
a. Contract offers from Q ENERGY Europe are subject to change. The order placed by the Purchaser is a binding offer. Contracts shall only be concluded upon order confirmation or delivery by Q ENERGY Solutions. The order confirmation from Q ENERGY Europe is exclusively authoritative for the scope of the contractually owed performance.
b. Information about the properties and performance characteristics of the goods is for illustrative purposes only and is not binding unless expressly agreed otherwise in writing, for example in the technical product description or the data sheets. Likewise, public statements, recommendations or advertising do not constitute a contractual statement of the quality of the goods. We reserve the right to minor deviations from specifications regarding dimensions, weights, condition and quality.
c. Q ENERGY Europe reserves the property rights and copyrights to illustrations, drawings, calculations and other documents - also in electronic form. This applies in particular to such documents which are designated as "confidential". The Purchaser shall require the express written consent of Q ENERGY Europe before disclosing them to third parties.
d. Q ENERGY Europe reserves the right to make changes even after an order confirmation has been sent, provided that these changes do not contradict either the order confirmation or the Buyer's specification. The Purchaser shall agree to any further proposed changes by Q ENERGY Europe to the extent that such changes are reasonable for the Purchaser.
3. PREISE UND ZAHLUNGSBEDINGUNGEN
a. Unless otherwise expressly agreed in writing with Q ENERGY Europe, the following shall apply: The prices are ex works plus the applicable statutory value added tax as well as the transport costs incurred. The Buyer is obliged to pay 100% of the agreed purchase price including all ancillary costs in advance. The Purchaser shall only be deemed to have made a payment in due time if the amount payable has been duly received in Q ENERGY Europe's account before the expiry of the payment deadline. If the Buyer is in default of payment, Q ENERGY Europe shall be entitled to charge default interest at the statutory rate. If Q ENERGY Europe can prove higher damages caused by default, it shall be entitled to claim such damages.
b. Q ENERGY Europe reserves the right, in the case of contracts with an agreed delivery period of more than three months, to adjust prices in accordance with cost increases occurring after the conclusion of the contract due to additional costs for personnel, transport and storage costs, the introduction of or changes to taxes or increases in the price of materials. However, this price increase is only permissible up to a maximum increase of 5% of the agreed price.
c. If partial payments have been agreed, the entire remaining debt - without regard to the maturity of any bills of exchange - shall become due for payment immediately if the buyer is in default in whole or in part with at least two consecutive instalments and the amount in respect of which he is in default amounts to at least one tenth of the agreed purchase price.
d. The Buyer shall only be entitled to rights of set-off or retention if its counterclaims have been legally established, are undisputed or have been recognised by Q ENERGY Europe.
4. DELIVERY, ACCEPTANCE, FORCE MAJEURE
a. Delivery dates and delivery periods shall be agreed in writing between the Purchaser and Q ENERGY Europe on an order-specific basis. Delivery periods shall commence upon conclusion of the contract, unless otherwise agreed with Q ENERGY Europe. If changes to the contract are subsequently agreed in writing, a new delivery date or a new delivery period shall be agreed at the same time, if necessary.
b. Compliance with agreed deadlines for delivery shall be subject to the timely and proper fulfilment of the Buyer's obligations.
c. If the Purchaser fails to fulfil its payment obligations or violates other material contractual obligations, Q ENERGY Europe reserves the right to terminate the relevant delivery(s).
d. If Q ENERGY Europe is in default of delivery of goods, its liability shall be limited to one-half of one percent of the invoice value of the deliveries affected by the default for each completed week of default, but not more than a total of five percent of the invoice value of the deliveries affected by the default. This penalty shall be the buyer's sole remedy in respect of such default.
e. Deliveries shall be accepted even if they show insignificant defects.
f. Partial deliveries are permissible insofar as they are reasonable for the buyer.
g. If the Purchaser is in default of acceptance, Q ENERGY Europe shall be entitled to demand compensation for the resulting damage. to demand compensation for the damage incurred; upon the occurrence of default in acceptance, the risk of accidental deterioration and accidental loss shall pass to the Buyer.
h. The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes as well as in the event of the occurrence of unforeseen obstacles which are beyond the control of Q ENERGY Europe, insofar as such obstacles have a considerable influence on the completion or delivery of the goods (e.g. war, threat of war, pandemics, sovereign interventions including currency and trade policy measures). This shall also apply if the circumstances occur at sub-suppliers (for example fire, shortage of raw materials, work stoppage due to a pandemic, energy shortage and other operational disruptions for which Q ENERGY Europe is not responsible). Q ENERGY Europe shall notify the Purchaser without undue delay of any such hindrances. If delivery delays due to such circumstances persist for more than a short period of time, both parties shall be entitled to withdraw from the contract. In this case, Q ENERGY Europe undertakes to reimburse the Buyer for any counter-performance already rendered. However, the Purchaser may only withdraw from the contract if Q ENERGY Europe does not declare within a period of one week whether it intends to withdraw from the contract or to deliver within two weeks.
5. HAZARD CROSSING
a. The risk shall pass to the buyer when the goods have been dispatched.
b. The Buyer is obliged to accept the goods delivered by Q ENERGY Europe at the time of delivery.
c. Delivery shall be EXW (Incoterms 2010), unless expressly agreed otherwise.
d. Q ENERGY Europe's liability for delays in delivery due to reasons related to the transport of the goods is excluded.
6. RESERVATION OF OWNERSHIP
a. The delivered goods shall remain the property of Q ENERGY Europe until all claims (including all current account balance claims) to which Q ENERGY Europe is entitled against the Buyer now or in the future for any legal reason have been satisfied. Processing or transformation shall always be carried out for Q ENERGY Europe as manufacturer, but without any obligations for it. If Q ENERGY Europe's ownership expires as a result of combination, it is hereby agreed that the Purchaser's ownership of the combined item shall pass to Q ENERGY Europe in proportion to its value (invoice value). The Purchaser shall hold Q ENERGY Europe's (co-) ownership in safe custody free of charge. Goods to which Q ENERGY Europe is entitled to (co-) ownership are hereinafter referred to as goods subject to retention of title.
b. The Buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The Buyer hereby assigns to Q ENERGY Europe, by way of security, all claims arising from the resale or other legal grounds with respect to the goods subject to retention of title (including all current account balance claims). Q ENERGY Europe hereby revocably authorises the Buyer to collect the claims assigned to Q ENERGY Europe for its account in its own name.
c. In the event of access by third parties to the goods subject to retention of title, the Purchaser shall point out Q ENERGY Europe's ownership and notify Q ENERGY Europe without delay. Costs and damages shall be borne by the Purchaser.
d. Q ENERGY Europe shall be entitled to terminate or withdraw from the contract and demand return of the goods in the event of breach of contract by the Purchaser, in particular in the event of default in payment. After taking back the goods, Q ENERGY Europe shall be entitled to realise them; the realisation proceeds shall be credited against the Buyer's liabilities - less reasonable realisation costs.
e. If the value of all securities existing for Q ENERGY Europe exceeds the existing claims by more than 10% on a sustained basis, Q ENERGY Europe shall release securities of its choice at the Buyer's request.
7. CONTRACTUAL LIEN
Q ENERGY Europe shall be entitled to a contractual lien on the items that have come into its possession on the basis of the contractual relationship because of its claims arising from the contractual relationship with the Purchaser. The contractual lien may also be asserted on account of claims arising from work carried out earlier, replacement deliveries and other services, insofar as they are connected with the subject matter of the contract. The contractual lien shall only apply to other claims against the buyer insofar as these are undisputed or have been established by a court of law.
a. The warranty is valid for a period of two years from delivery of the goods. In the event of a defective delivery, Q ENERGY Europe shall first be obliged, at its own discretion, either to repair the damage or to deliver non-defective goods. In the event of failure to deliver a replacement or repair, the Buyer may assert its statutory warranty rights (reduction of the purchase price or rescission with respect to the defective goods). The Buyer is obliged to return the defective goods to Q ENERGY Europe, unless Q ENERGY Europe has expressly ordered otherwise. Q ENERGY Europe shall bear the necessary costs of such return shipment if required by applicable mandatory laws. Returned goods shall become the property of Q ENERGY Europe, unless otherwise agreed by the parties or otherwise required by any applicable mandatory law. The Buyer must obtain written confirmation from Q ENERGY Europe before returning the goods.
b. As a matter of principle, only those properties shall be deemed to have been agreed upon that can be derived from the technical product description or the data sheet. Public statements, recommendations or advertising do not contain a binding description of the agreed quality of the goods.
c. This section does not constitute a "quality guarantee" in relation to the goods within the meaning of § 443 of the German Civil Code (BGB), nor does it constitute the "acceptance of a guarantee" within the meaning of § 276 of the German Civil Code (BGB).
d. The assertion of claims for defects on the part of the buyer presupposes that the buyer has properly fulfilled his obligations to examine the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
e. Further claims on the part of the buyer are excluded, in particular those based on consequential damages caused by defects, provided that these were not caused due to non-compliance with warranted specifications.
9. OTHER LIABILITY
a. Claims for damages by the buyer, irrespective of the legal grounds, are otherwise excluded. This does not apply in cases of intent, gross negligence and breach of essential contractual obligations. Compensation for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract. A change in the burden of proof to the detriment of the buyer is not associated with the above provisions.
b. If the Buyer sells, modifies or combines the delivered goods with other goods, he shall indemnify Q ENERGY Europe internally against product liability claims of third parties, unless the Seller is responsible for the defect giving rise to the liability.
c. Modification of the goods and any marking that is considered to be a mark of origin of the Buyer or a third party are not permitted.
10. DISCLAIMER OF LIABILITY
The exclusions or limitations of liability set out in these terms and conditions do not apply to:
i. Damages resulting from injury to life, body or health that are based on an intentional or negligent breach of duty by Q ENERGY Europe or an intentional or negligent breach of duty by a legal representative or vicarious agent of Q ENERGY Europe,
ii. other damage resulting from an intentional or grossly negligent breach of duty by Q ENERGY Europe or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Q ENERGY Europe,
iii. Cases of liability under the Product Liability Act or cases in which a guarantee has been given.
11. RIGHT OF WITHDRAWAL AND TERMINATION
Q ENERGY Europe has the right to terminate or withdraw from the contract in whole or in part if:
i. the opening of insolvency proceedings against the Purchaser's assets is applied for,
ii. it becomes known that the Buyer was classified as uncreditworthy at the time of conclusion of the contract,
iii. the Buyer ceases its business operations, or
iv. there is any other good cause justifying termination or rescission. Such an important reason would be, for example, the breach of essential contractual obligations.
In the case of continuous delivery relationships, the right of extraordinary termination without notice shall replace the right of withdrawal.
12. SEVERABILITY CLAUSE, PLACE OF PERFORMANCE, PLACE OF JURISDICTION
a. If parts of these terms and conditions are invalid or contradict applicable law, this shall not affect the remaining clauses.
b. The place of performance and jurisdiction of Q ENERGY Europe is Berlin. These terms and conditions are subject to German law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
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* Q ENERGY Europe is a trademark of Q ENERGY Solutions SE.