AGBs

1. General

1.1 All consignments and services are delivered by Lumitenso GmbH under these business terms and conditions only. Our contractual partners’ conditions differing from our general terms and conditions of business are not accepted by us, unless they are expressly confirmed by us in writing. Our general terms and conditions of business are also applicable in case we carry out the delivery without reservation, knowing that customer’s conditions are opposed to or differing from our general terms and conditions of business.

1.2 All agreements that are concluded between us and the customer for the fulfillment of this contract are put in writing in this contract.

2. Offer and Conclusion of Contract

2.1 The order signed by the customer is binding for the customer as the contractual offer. We are entitled to accept this order within 2 weeks by sending an order confirmation or by delivering the ordered goods to the customer within this period.

2.2 Our offer is subject to change unless stated otherwise in the order confirmation.

3. Prices and Payment

3.1 Except as otherwise stated in the order confirmation, our prices apply ex stock exclusive freight or other additional costs. For goods without list price, the current daily price at the day of delivery is valid.

3.2 We reserve the right to change our prices adequately if after the conclusion of the contract costs decrease or increase, especially due to tariff agreements or changes of material prices. These will be proved by us to the customer upon request.

3.3 The required value added tax is not included in our prices; the legal VAT amount will be displayed separately on the invoice for the day of invoice issuing.

3.4 The deduction of a discount is subject to a separate agreement in writing.

3.5 The prices for purchase and / or installation of goods have to be paid fully before the start date of the installation, unless a different agreement is mentioned on the order confirmation. Otherwise the net prices (without deductions) are due for payment within 8 days from receipt of the invoice. Default delay occurs after 30 days without further reminder. If the customer fails to make the advance payment mentioned in sentence 1 or does not pay it despite a fixed deadline in writing, we have the right to cancel the contract and are entitled to compensation payments. If insolvency is filed for the patrimony of the customer and / or insolvency proceedings are opened, the right of cancellation and compensation is valid without further preconditions. Moreover, with receipt of the cancellation declaration all open invoices and claims for compensation become due and payable immediately.

3.6 The customer is entitled to offset only if his counterclaim is legally established or undisputed by us. He is entitled to claim rights of retention only to the extent such rights are based on the same
contractual relationship.

3.7 Bills of exchange or checks are accepted only on account of payment if agreed. Bank costs and charges charged for this are borne by the customer.

4. Delivery

4.1 We are entitled to subcontract the services necessary for the fulfillment of this contract to third parties.

4.2 Delivery is freight collect ex stock. When delivered by forwarding company, the goods are insured for transport. When delivered by mail, DPP etc., the standard insurance agreements of these service providers are valid. Transport and other packaging according to the regulation on packaging are not taken back; except reusable palettes. The customer is obliged to take care of the disposal of the packaging at his own expense.

4.3 The start of the delivery period stated by us implies the prior clarification of all technical questions. The compliance with our delivery obligation is conditioned upon timely and proper fulfillment of the customer’s obligation. The objection of the non-fulfilled contract remains reserved.

4.4 As far as the installation of the goods is subject matter of the contract in addition to the delivery, the customer has to make sure at his own expense that the assembly, installation and start up can be started according to the agreement and be performed without interruption. The customer allows us and third parties subcontracted by us the unlimited access to the building as far as this is necessary for the performance of the services owed by the terms of the contract.

4.5 In case of default of acceptance or culpably breach of other obligations of cooperation, we are entitled to claim compensation for any resulting damage, including but not limited to additional expenses. In this case we are entitled to request a compensation fee amounting to 15% of the order value without deductions, unless the customer proves that the damage was not caused at all, or not for the amount of this lump sum. Additional claims shall remain reserved.

4.6 In the case mentioned in number 4.5, the risk of accidental loss or damage of the purchased goods passes to the customer at the time of default or breach of obligation of cooperation.

4.7 The delivery dates stated by us are legally binding only if they were described and confirmed by us as “binding delivery date”.

4.8 The delivery and / or installation by us is subject to the fact that we receive supply in time. In case we do not receive supply we will promptly inform the customer. If we do not receive supply, we are entitled to choose another supplier at our sole discretion and use his consignment, even if this differs from the contract, provided that the goods are comparable. In case of delayed receipt of supply, our services will be delayed by the delay period of our supplier. We do not assume any procurement risk.

4.9 If the customer wishes a termination or rescission of the contract due to delivery delays because of delayed receipt of supply by us – as far as no binding delivery date was agreed – or because of other circumstances that do not justify a legal rescission, we are entitled, without prejudice to the possibility to a claim for higher damages, to claim 10% of the net order value for handling charges and loss of profit. The customer has the right to prove that no damage whatsoever has occurred or that the damage is considerably lower.

5. Retention of Title

5.1 We retain title of the goods and / or the subject matters of the contract provided by us until receipt of all payments for the current business relationship, the retention refers to the accepted balance. In the case of breach of the contract by the customer, including without limitation default in payment, we are entitled, after setting an appropriate deadline, to take the goods back. Our taking back the goods constitutes the rescission of the contract. After taking back the goods we are entitled to make use of them, the revenue of utilization is to be credited against the customer’s liabilities, minus adequate utilization costs.

5.2 In case of seizures or other interventions of third parties, the customer has to notify us in writing immediately, so that we can take action pursuant to article 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not able to reimburse us for court costs and extra-judicial costs of an action pursuant to article 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss caused to us.

5.3 The customer is entitled to sell the goods further in the regular course of business. However, he hereby assigns to us now all claims equivalent to the final invoiced amount including value-added tax if he holds such claims against his customers or other third parties as a result of the sale of our products, this being irrespective of whether the goods were sold with or without further processing. The customer remains authorized for collection of these receivables also after the assignment. Our right to collect the debts ourselves remains unaffected. We however commit ourselves to making no use of this assignment as long as the customer meets his liabilities from collected proceeds, is not in default of payment and in particular as long as no application for insolvency proceedings against him has been filed or as long as he has not suspended payments. If this, however, is the case, we can demand that the customer informs us of the assigned receivables and the persons owing these, provides all information needed to collect these receivables, gives us the related documents and informs the debtors (third parties) of the assignment of debts.

5.4 If the conditional goods delivered by us are processed or combined with goods being in ownership of a third party, we are entitled to the ownership of the new product for the value of the fraction that corresponds to the invoice value of our goods in relation to the value of the new product at the moment of processing or combination. If the buyer acquires the sole ownership of the product by processing or combination, it is agreed that he assigns to us co-ownership of the new product in the proportion of our invoice value of the conditional goods at the value of the new product at the moment of processing or combination, and keeps such in safekeeping for us free of charge.

6. Liability

6.1 * Precondition for any warranty claim of the customer is the full compliance with his obligations regarding inspection and objection defined in article 377 HGB (German Commercial Code).

6.2 As far as the installation of the goods is required from us according to the contract, the customer’s final acceptance has to follow promptly the production-ready assembly of the corresponding supplied goods.

6.3 * Warranty claims are limited to 12 months after delivery of the goods delivered by us to the customer. The foregoing stipulation does not apply if the law as per article 438 para 1 no. 2 (Constructions and articles for constructions), article 479 para. 1 (Right of Recourse) and article 634a (Construction defects) of the German Civil Code stipulates longer time spans. Our consent must be obtained before any goods are returned.

6.4 * In the event that the delivered goods have a defect already at the time of passing of risk, we shall, subject to timely notice of the defects, repair or replace the goods, at our own discretion. We shall always be given the opportunity to render alternative performance within reasonable time.

6.5 If the alternative performance fails, the customer may, at his own discretion, demand either termination or reduction. The Customer may not demand compensation for expenses incurred in vain.

6.6 * The warranty of defects is excluded in the case of only insignificant deviation from the agreed characteristics, or only insignificant impairment of the usability, or natural wear and tear, or for damage arising after the passing of risk caused by erroneous or careless handling, excessive stress, unsuitable operating resources, defective construction work, unsuitable building ground which arise due to exceptional external influences not presupposed according to the contract. The warranty does not cover defects or damage which are to improper repair or modification carried out by the customer or by third parties.

6.7 Claims by the Client for costs, in particular for transport, shipping, handling, labor and materials, relating to supplementary performance are excluded, if the costs were increased by the fact that the goods have been brought to a location other than the place of fulfillment.

6.8 We are liable in accordance with the statutory provisions to the extent that the customer asserts claims to damages that are due to intent or gross negligence. To the extent the breach of contract is unintentionally, our liability for damages is limited to the foreseeable and typically predictable damages.

6.9 According to the requirements of law, we are liable to the extent that we culpably violate an important contractual obligation; in this case, however, liability for damages is limited to the foreseeable and typically predictable damages.

6.10 Our liability for culpable damage to life, body or health as well as our compulsory liability according to the German product liability act (Produkthaftungsgesetz) is unaffected.

6.11 Any liability not expressly provided above, notwithstanding the legal nature, is excluded. This applies in particular to damage claims for default of contract execution, or due to other breaches of duty, or due to claims on account of tortuous compensation for property damage under article 823 BGB (German Civil Code).

6.12 To the extent that our liability has been limited or excluded, this shall also apply to our employees, workers, representatives and vicarious agents.

6.13 We are not liable for damages that result from the fact that the customer or a subcontractor ordered by him performed the preparatory work for the installation of the goods delivered and / or assembled by us inadequately.

6.14 It is pointed out to the customer that by installation of a photovoltaic system, the load bearing capacity of facility bearing the system is reduced (e.g. snow load of a roof). Claims derived from this reduction of load and load bearing capacity are excluded. Same applies to the installation of systems on the ground floor.

7. * Passing of Risk

In the case the goods are shipped to the customer at the customer’s request, the risk of accidental loss or damage shall pass to the customer at the time of sending to the customer and latest leaving the warehouse. This applies regardless of whether the goods are sent from the place of fulfillment or who bears the freight charges.

7.1 Packaging and shipment are done at the expense of the customer with the usual diligence and care. Upon request and expense of the customer the shipment will be insured against transport damages by the supplier.

7.2 Delivery has to be checked for obvious damages upon acceptance und be noted upon acceptance on the freight papers according to article 438 HGB (German Commercial Code).

7.3 Hidden damages must be notified to Lumitenso GmbH immediately and not later than 7 days after delivery, indicating the carton number and delivery number.

7.4 In the case of non-delivery upon request of the customer or default of acceptance by the customer, the risk of storage arranged by the supplier passes to the buyer. Incurred costs are borne by the customer. The supplier is furthermore entitled, in case of delayed or refused acceptance by the customer, to rescind the contract or claim compensation because of non-fulfillment.

8. Submitted Documents

8.1 We reserve the copy and property rights to all documents submitted to the customer in connection with the order, e.g. calculations, drawings etc. These documents may not be made accessible to third parties, unless this was expressly approved by us in writing and informed to the customer.

8.2. In case of our delivery according to drawings, models, samples or parts provided by the customer, the latter shall ensure that industrial property rights of third parties are not infringed upon. The customer must release us from any third-party claims and pay compensation for resulting damages.

9 Jurisdiction and Applicable law

9.1 If the customer is a merchant, our registered office is our venue of jurisdiction; we are however authorized to file suit against the customer at the court of his residency.

9.2 This contract and the entire legal relations of the parties are subject to the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CICSG).

9.3 All changes and amendments to this contract must be made in writing. This provision also applies to the amendment of the written form clause. No supplementary oral agreements have been made.

9.4 Should one of the provisions of this contract be or become invalid or be incomplete, the remaining provisions shall maintain their validity. The parties undertake to agree an appropriate regulation instead of the ineffective regulation, which comes nearest to the commercial purpose of the invalid or incomplete regulation, and which is valid itself.

*) applies only in case that the buyer is an entrepreneur / merchant.