1. Scope of Application

a) The following Terms and Conditions apply to all of our offers and services as well as assembly, repair, maintenance and consulting services or other contractual services, to the exclusion of any deviating terms and conditions of the customer.

b) Any arrangements that modify or supplement these Terms and Conditions, incidental agreements and conditions of the customer are only valid if we have confirmed them in writing.

 

2. Offer

a) Any documents relating to the offer, such as illustrations, drawings, dimensions and weight data, are for the customer's convenience only and shall not be regarded as agreements on quality or as an assumption of a quality warranty in respect of the described products or services. They may only be passed on to third parties with our consent. If the order is not placed, such documents are to be returned immediately at our request.

b) We assume no liability for any deviations between the data in the documents and the supplies and services provided, unless we caused such deviations by at least gross negligence.

 

3. Orders, order confirmations

Our offers are subject to confirmation. Orders are regarded as accepted when acknowledged by us in writing. The written confirmation of order shall be decisive for the content of the contract. Otherwise, orders are deemed to be accepted if we have performed the order. The date of delivery of documents is decisive for the provision of services.

 

4. Prices and payment

a) All prices are ex our distribution warehouse, plus transportation costs and VAT applicable on the date of delivery.

b) We reserve the right to correct any prices due to errors, both in invoices and in our price lists, delivery notes, order confirmations and offers.

c) The customer has no right to retain payments due to counterclaims that are not based on this contractual relationship.

d) Any setoff or retention is only possible against undisputed or finally adjudicated claims.

e) In the case of a significant deterioration in the customer's financial position or occurrence of any other circumstances (including checks not honoured, suspension of payment, petition for insolvency) that might impair the customer's creditworthiness, all our claims become due and payable immediately. In these cases we are also entitled to provide performance only after the payment of due claims, against advance payment or against collateral security and to cancel the contract after a relevant request to no avail. If the customer violates the terms of payment repeatedly or considerably, we are entitled to claim damages instead of performance following the unsuccessful expiry of a reasonable period of payment. The liability for losses caused as a result of delay and any further legal claims shall not be affected.

f) The place of performance for payments is Berlin. The regulations of section 270 of the German Civil Code (BGB) shall not be affected hereby.

g) Sales representatives and travelling salespersons are not entitled to make agreements on collection and suspension of payment.

h) The services, unit numbers and quantities, as determined by us, shall be decisive for calculating prices, unless the customer objects without undue delay.

i) Our invoices are due and payable immediately within 8 days net from the invoice date if no other written agreements have been made. Payments through a bill of exchange are not permitted.

j) Interest on arrears amounts to 8% above the base interest rate pursuant to section 288 BGB. This shall also apply if payment is suspended.

k) Emmvee Photovoltaics GmbH has the right to claim payment for the goods prior to delivery.

l) Payments shall be made to one of our specified accounts without any deductions.

 

5. Delivery and delivery period, shipment, passing of risk, self-supply reservation

a) Unless agreed explicitly otherwise, delivery is effected ex our distribution warehouse in Bangalore, India.

b) The risk passes to the purchaser as soon as the shipment has been handed over to the person responsible for transportation or has left the warehouse of our company or of the sub-supplier (in the context of transfer orders) for the purpose of shipment or transportation. This applies independently of whether transportation or shipment is effected by us or on our behalf or by the customer or by agents of the customer.

c) If we have taken out transportation insurance and if the purchaser has fulfilled all of its payment obligations to us regarding the transport-insured goods, we will assign our claims against the insurer to the purchaser to the extent permitted by law and by the insurance contract, unless assignment is prohibited in the insurance contract.

d) In the event of damage, any credit for the loss incurred will be issued only after we have been granted cover from the insurance company. We do not assume any further obligations in this respect. The general terms and conditions of business and delivery of Emmvee Photovoltaics GmbH are regarded as accepted through a written and binding order of goods and services.

e) If collection has been agreed, the risk of accidental loss and accidental deterioration of the delivery items passes to the customer upon notice of readiness for collection. Otherwise, the risk shall pass to the customer at the time the shipment is handed over to the freight forwarder.

f) If dispatch is delayed for reasons under the customer's control, the risk shall pass to the customer on the date of readiness for dispatch.

g) The specified delivery period does not constitute an agreement on a fixed delivery date. If we are prevented from performing timely delivery due to unforeseeable events or events beyond our control (e.g. force majeure, strike, lock-out) that are unavoidable in spite of reasonable care, the delivery period shall be extended adequately. In any case, delivery is subject to the reservation that we receive correct and punctual delivery from our suppliers. Bottlenecks and delays caused by a manufacturer or by our suppliers are beyond our control. If delivery becomes impossible or intolerable subsequently due to such events, we are entitled to cancel the contract in whole or in part.

h) The delivery period commences upon dispatch of the confirmation of order, but not before the receipt of an advance payment agreed, if any, not before all technical details have been clarified and not before the customer has fulfilled all of the prerequisites incumbent on it for the execution of the transaction.

i) The delivery period is regarded as complied with if the goods have left our distribution warehouse or readiness for dispatch has been reported by expiry of the delivery period.

j) Part deliveries that are acceptable by the customer are permitted.

k) In the event of a default on our part, the customer cannot claim compensation for the part of the delivery or service that could not be commissioned as intended due to the default - including if the customer can provide evidence that it incurred any losses as a result.

l) At our request, the customer is obliged to notify us within a reasonable period whether it wants to cancel the contract due to the delay in delivery or performance or whether it insists on delivery or performance.

m) To the extent that we concluded a congruent cover transaction with a third party in order to fulfil our delivery obligation to the customer, we reserve the right to cancel the contract with the customer, if our contracting partner of the cover transaction fails to fulfil its delivery obligations as required, in particular within the due time and to the full extent. Our right to cancel the contract lapses if the non-delivery under the cover transaction is due to our fault. In the event of improper supply from our contracting partner of the aforementioned cover transaction, we will notify the customer without undue delay. Should the supplier of the cover transaction make part deliveries to us, we may also make part deliveries to our customer insofar as tolerable by the customer. In the event of a part delivery, our aforementioned reservation of the right of cancellation relates to our delivery obligation to the customer, which remains after the part delivery. If we exercise the aforementioned right of cancellation, we will reimburse immediately any compensation already paid by the customer. Any further damage claims of the customer are excluded or limited in line with the provisions in nos. 9 and 10. Any other claims of the customer against us are excluded after we have exercised our aforementioned right of cancellation.

n) The customer is not entitled to refuse to accept any shipments or services due to minor defects. The customer must inspect the shipments upon acceptance for completeness and freedom from defects.

o) Should the customer cause a postponement for the dispatch of the delivery items in spite of a confirmed delivery date and notice of readiness for delivery, we will store them at the customer's risk insofar as possible. Such storage does not relieve the customer from its payment obligation, which accrues from the date of provision for delivery. If dispatch or delivery is delayed at the customer's request by more than two weeks after notice of readiness for dispatch, we are entitled to charge the customer storage fees of at least 0.5% of the price of the items to be delivered for each month or part thereof. We reserve the right to give proof of higher storage costs. Any additional costs, announced and incurred for external storage, which are to be evidenced by the supplier, shall also be borne by the customer.

p) In the event of a delay described under 5f), we are entitled to cancel the contract and, in addition, to demand compensation of fruitless expenses, after a period of seven days, specified for acceptance, has passed to no avail.

 

6. Reservation of title

We make our deliveries only on the basis of the reservation of title described below. This also applies to all future deliveries, including if we do no refer to it explicitly again.

a) We retain ownership in the delivered goods until the full payment of all claims under the delivery contract. We are entitled to take the purchased goods back if the purchaser breaches the contract.

b) The purchaser shall be obliged to treat the goods with care until the title in the purchased object has passed to the purchaser. In particular, the purchaser is obliged to insure the goods adequately at its own expense against theft and fire and water damage at their replacement value. If any maintenance and inspection work becomes necessary, the purchaser must perform it at its own expense and within due time. If the title to the goods has not yet passed, the purchaser must notify us immediately if the delivered object has been attached or subject to other interventions of third parties. If the third party is not able to reimburse us for the judicial and extra-judicial costs of a suit pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable to pay the costs incurred by us.

c) The purchaser is entitled to sell the retained goods within its normal course of business. The purchaser forthwith assigns its claims from the resale of retained goods to us in the amount of the final invoice amount agreed with us (including VAT). The assignment is independent of the fact of whether the purchased goods have been resold with or without further processing. The purchaser remains authorised to collect the claim, including after the assignment. Our right to collect the debt ourselves shall not be affected. However, we will not to collect the debt, as long as the purchaser fulfils its payment obligations from its proceeds, is not in delay with payment and, in particular, does not file a petition for opening insolvency proceedings or if no stoppage of payments has occurred.

d) The processing, treatment or conversion of the purchased goods by the purchaser is always effected in our name and on our behalf. In this case, the purchaser's right to the goods continues to exist in the converted object. If the purchased goods are processed together with other objects, which are not our property, we acquire co-ownership in the new object in proportion to the objective value of the object sold to the other objects processed, at the date of processing. The same applies to a combination of objects. If the combination is effected in such a manner that the object of the purchaser is to be regarded as the main object, it shall be deemed as agreed that the purchaser transfers proportionate co-ownership to us and shall hold in safe custody the sole ownership or co-ownership for us. In order to secure our claims against the purchaser, the purchaser shall also assign to us the claims which it accrues against a third party from the combination of the retained goods with real estate. We herewith accept this assignment.

e) We undertake to release securities created for us at the purchaser's request to the extent that their value exceeds the debt to be secured by more than 20%.

 

7. Advice regarding application technology

We provide advice regarding application technology to the best of our knowledge. Any data and information regarding the suitability and use of our goods do not release the customer from performing its own inspections and trials for the suitability of the products for the intended procedures and purposes.

 

8. Duty to inspect and give notice of defects

a) The customer is obliged to examine the goods immediately and to give notice in writing of any defects immediately, but within 14 days from receipt at the place of destination. A notice given to authorised dealers and travelling salespersons is not sufficient.

b) Hidden defects must be notified in writing within 3 working days upon discovery. Later complaints cannot be accepted.

c) Timely dispatch of a written complaint, including a detailed description of the relevant defects, will suffice for compliance with the complaint period.

d) If complaints or notices of defects are not made in due time, the shipment is regarded as approved.

e) In the event of a notice of defects, payments of the customer may be delayed to the extent to which it is in an adequate proportion to the defects occurred. The customer may only retain any payments, if a notice of defects has been asserted, the validity of which is undoubted. If an unjustified notice of defects is given, we are entitled to claim any expenses incurred by us from the customer.

 

9. Warranty

a) The product description in the offer or the order confirmation is deemed to be agreed for the goods' quality. We do not give a warranty for the quality of the goods or for the duration of a quality other than the specified performance and product warranties given by the manufacturer.

b) Warranty information and warranty conditions are simply manufacturer information, for which we do not assume any liability. If a warranty case occurs, the manufacturer can choose to provide substitute performance or rectification of a defect. We do not assume any liability for expenses, in particular assembly or travelling expenses, etc., which are related to the manufacturer liability. In this case, the warranty conditions of subsuppliers are decisive.

c) The purchaser (customer) has indemnification claims against the supplier (us) pursuant to section 478 BGB (recourse to the entrepreneur) only to the extent that the purchaser (customer) has not made any arrangements with its customer exceeding the statutory warranty claims.

d) Our liability for installation or repair work is excluded if installers purchase the goods independently from us and, therefore, are not vicarious agents within the meaning of section 434 (2) BGB.

e) We are not liable for damage that occurred in the context of the warranty due to a violation of contractual incidental duties, due to consulting errors, tort, culpable violation of substitute delivery or rectification obligations or due to any other legal reasons - in particular, if damage was not caused to the delivery object itself, unless in the event of intent or if the exclusion of liability is not permitted for any other reasons. In the event of absence of guaranteed qualities, damage claims are excluded, unless it was the intent and purpose of this guarantee to avoid consequential harms caused by a defect.

f) If the delivery item has a defect of quality upon the passing of risk, the customer is entitled, at our option, to rectification of defects or substitute delivery. The seller has the right to provide rectification of defects or substitute delivery three times. We are entitled to refuse rectification of defects or substitute delivery if it results in disproportionately high expenditure. In this case, the customer has the rights specified in clause 10 b). It is deemed disproportionately high expenditure for the chosen type of subsequent performance if the cost of subsequent performance exceeds the value of the goods to be delivered again by more than 20% upon the passing of risk.

g) If we fail to rectify the defect of quality within a reasonable period of grace, the customer may choose to reduce the purchase price, to cancel the contract or to claim damages pursuant to clause 10. If the purchaser cannot be expected reasonably to accept the selected type of subsequent performance, it has the rights set forth in sentence 1 immediately. The right to cancel the contract and to claim damages is excluded in the event of insignificant defects of quality.

h) The warranty period is 24 months. It commences at the time of delivery of the ordered goods, but at the latest upon invoicing; in the event of clause 5 f), it commences at the time the notice of readiness for dispatch is given.

i) It is not regarded as a case of warranty for defects, in particular, if and insofar damage to the delivery item or other assets of the customer is due to the following reasons:

• Incorrect information about the purpose, place or conditions of use of the delivery item.
• Defective processing, assembly or treatment.
• Defective installation of the delivery item by the customer or third parties, unless defective installation was based on our instructions.
• Non-compliance with instructions contained in the operating manual or given by us regarding commissioning or operation of the delivery item; this also applies especially to operating manuals of subsuppliers if these were provided to the customer or known to the customer for other reasons.
• Interventions of individuals not authorised by us; normal or excessive wear and tear not due to production or material defects.
• Excessive load.

j) The aforementioned warranty in line with this clause will only be provided to the extent and in the amount as it exists when the delivery item is used at the agreed place of delivery. Should expenses increase because the purchased item was moved to a place other than the agreed place of delivery, the customer has to bear these additional costs.

k) Of the direct costs incurred by the rectification of defects or substitute delivery, insofar as the complaint proves to be justified, we bear the directly necessary costs of subsequent performance, in particular the costs of the replacement item, including shipment costs, as well as reasonable removal and installation costs, but not more than twenty percent of the purchase price of the replacement item. Any other costs shall be borne by the customer. 

l) Unless explicitly agreed otherwise, the rectification of defects of quality pursuant to clause 9 or any performance according to clauses 9 and 10 is provided in all cases without acknowledging any legal obligation.

m) Additional claims or claims other than those governed by clauses 9 and 10 of the customer against us and due to a defect of quality are excluded.

 

10. Other damage claims, liability

a) In the event of intent and gross negligence, we are liable in line with the statutory provisions. In the event of gross negligence, we are liable for the typically foreseeable damage, but up to a maximum of 2.5% of our selling price, unless proof is provided of higher damage in the individual case. This also applies to a culpable breach of a material contractual duty. The liability due to the absence of a guaranteed quality shall not be affected. The liability according to the Product Liability Act and for other personal injuries is also not affected. Any other liability is excluded.

b) Insofar as delivery is impossible, the purchaser is entitled to claim damages, unless our company is not responsible for the impossibility. The purchaser's damage claims shall be limited to 2.5% of the value of that portion of the delivery, which could not be used as intended due to impossibility. This limitation shall not apply in the event of mandatory liability due to intent or gross negligence, or violation of life, body, or health. This does not lead to a change in the burden of proof to the detriment of the purchaser. The right of the purchaser to cancel the contract shall not be affected.

c) If unforeseeable events lead to a considerable change in the commercial importance or the contents of the delivery or influence our business operations to a significant extent, the contract shall be adjusted reasonably in compliance with good faith. If this is not justifiable under economic aspects, we are entitled to cancel the contract. We will notify the customer of this right of cancellation promptly, including if we initially agreed upon an extension of the delivery period with the customer.

 

11. Data protection

We are entitled to process data about the customer, disclosed to us under or in connection with this business relationship, irrespective of whether provided by the customer or by third parties, within the meaning of the Federal Data Protection Act.

 

12. Validity

Supplements and/or changes to these Terms and Conditions must be made in writing to become effective. This shall also apply to the written form requirement. If individual or several provisions of these Terms and Conditions are or become ineffective, invalid or unenforceable, the validity of the remaining provisions shall not be affected. In the event of the ineffectiveness, invalidity or unenforceability of a clause, Emmvee Photovoltaics GmbH is entitled to formulate a substitute clause at its equitable discretion, which clause can be subjected by the customer to a judicial review in line with section 315 BGB.

 

13. Place of jurisdiction and place of performance

a) If the Customer is a merchant, legal person under public law or special assets of the Federal Government, the place of jurisdiction and the place of performance shall be Berlin.

b) The contractual relationships with our customers are governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the provisions of international private law.