THE SILENT POWER OF SUNLIGHT
GENERAL TERMS OF DELIVERY AND PERFORMANCE (ALB) OF JONSOL GMBH
§ 1 SCOPE OF APPLICATION
(1) In addition to all contracts concluded by us with a customer for our deliveries and services as well as for pre-contractual obligations in this respect, these General Terms and Conditions of Delivery and Service (ALB) shall apply exclusively, unless otherwise expressly agreed in writing. Other terms and conditions of business or purchase shall not become part of the contract, even if we do not expressly object to them. This shall also apply if we provide our services to the customer without reservation in the knowledge of conflicting or deviating conditions or if reference is made to them in individual correspondence.
(2) Only our General Terms and Conditions of Business shall apply in the version available at www.jonsol.com/alb at the time of the customer’s order, even if no reference is made to them again upon conclusion of similar contracts in the event of ongoing business relations, unless the contracting parties agree otherwise in writing. On request, the customer will also be sent the current version of the ALB in printed form free of charge.
(3) These ALB shall not apply to consumers within the meaning of § 13 BGB.
§ 2 CONCLUSION OF CONTRACT
(1) Our offers are subject to change and non-binding unless the offer is designated as binding in text form. The customer shall be bound for two weeks by declarations for the conclusion of contracts (contract offers).
(2) A legal binding is only established by a contract signed by both parties or by our order confirmation, and also by the fact that we begin to provide services in accordance with the contract after receiving an order. We can demand written confirmations (text form) of verbal contractual declarations of the customer.
§ 3 SUBJECT MATTER OF THE CONTRACT
(1) Decisive for the scope, type and quality of the deliveries and services is the contract signed by both parties or our order confirmation, otherwise our offer. Other details or requirements shall only become part of the contract if the contracting parties agree to this in writing or if we have confirmed them in writing. Subsequent changes to the scope of services require agreement in text form or our express confirmation in text form.
(2) Product and service descriptions, representations and technical data do not represent guaranteed properties. A guarantee requires an express declaration in text form.
(3) We reserve the right to make minor changes in performance, provided that these are minor changes in performance that are reasonable for the customer. In particular, customary deviations in quality, quantity, weight or other deviations are to be accepted by the customer, even if he refers to brochures, drawings or illustrations when placing his order, unless expressly agreed as binding quality.
(4) We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents. This shall also apply to such documents that are designated as “confidential”. The customer shall require our express consent in text form before passing them on to third parties.
§ 4 TIME OF PERFORMANCE, DELAYS, PARTIAL PERFORMANCES, PLACE OF PERFORMANCE
(1) Information on delivery and performance dates is non-binding, unless we have designated them as binding in text form. All delivery and performance deadlines are subject to correct and timely delivery to us. Delivery periods shall commence with the dispatch of the order confirmation by us, but not before all necessary commercial and technical questions between the customer and us have been clarified and the customer has fulfilled all obligations incumbent upon him (e.g. provision of necessary information or permits or making agreed down payments).
(2) Delivery and performance periods shall be extended by the period in which the Customer is in default of payment under the contract, plus a reasonable start-up period after the end of the impediment. The same applies in the event of circumstances for which we are not responsible and which prevent us from delivering or performing. These circumstances also include force majeure, shortage of raw materials on the relevant raw material markets, delays on the part of our suppliers and subcontractors and industrial disputes. Deadlines shall also be deemed to be extended by the period of time during which the customer does not provide a cooperation service in violation of the contract, e.g. does not provide information, does not supply a provision or does not make employees available.
(3) If the contractual partners subsequently agree on other or additional services which affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) If, at the request of the customer, a postponement of delivery dates or dates for the provision of services is agreed, we shall be entitled to demand payment at the time at which it would have become due without the postponement. Furthermore, in such cases we shall be entitled to pass on any storage costs incurred to the customer. The agreement on the postponement of such dates must be made in writing.
(5) Reminders and setting of deadlines by the customer require text form to be effective. A grace period must be reasonable. A period of less than two weeks shall only be reasonable in case of special urgency.
(6) We can provide partial services, as far as the delivered parts are usable for the customer.
(7) If we ourselves are not (finally) supplied by our supplier or subcontractor, although we have carefully selected the latter and the order meets the requirements of our obligation to deliver or perform, we shall be entitled to withdraw from the contract in whole or in part in relation to the customer if we notify the customer of our non-delivery and – if permissible – offer to assign to the customer the claims to which we are entitled against the supplier. In the selection of our suppliers we are not liable for slightly negligent selection fault.
(8) Our registered office is the place of performance. Unless otherwise stated in the order confirmation, delivery is agreed “ex works”.
§ 5 PRICES, REMUNERATION, PAYMENT, OFFSETTING
(1) Unless otherwise agreed by the contracting parties, all prices shall apply ex our registered office. All prices and remunerations are net prices plus the applicable statutory value added tax and any other statutory charges in the country of delivery as well as plus travel costs, expenses, packaging, shipping and, if applicable, transport insurance. Any additional services requested by the customer will be invoiced according to time and effort.
(2) Subject to paragraph 6, the respective contractually agreed prices shall be paid. Services will be invoiced according to expenditure.
(3) Unless otherwise agreed by the contractual partners, payments are due immediately after the services have been rendered and the invoice has been received by the Customer without deduction and are payable within 14 days.
(4) During the period of default of payment, the Customer shall pay interest at a rate of nine percentage points above the applicable prime rate. The right to assert any further damage caused by default remains unaffected.
(5) If the Customer’s default lasts longer than 30 calendar days or if an application for the opening of insolvency proceedings against his assets or comparable proceedings under another legal system is granted, we shall be entitled to make all claims against the Customer due for immediate payment, to withhold all deliveries and services and to assert all rights arising from retention of title.
(6) The Customer may only set off claims against our claims if they are undisputed by us or have been finally and conclusively determined by a court of law. Except within the scope of § 354 a HGB (German Commercial Code), the customer may assign claims arising from this contract to third parties only with our prior consent given in text form, which may not be unreasonably withheld. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within the respective contractual relationship.
(7) If, after conclusion of the contract, we receive knowledge of circumstances which give rise to serious doubts about the financial circumstances or the creditworthiness of the Customer, we may make processing and delivery dependent on an appropriate advance payment by the Customer or on a security deposit or bank guarantee.
§ 6 RESERVATION OF TITLE
(1) Our services shall remain our property until full payment of all claims to which we are entitled against the customer from the business relationship. The claims also include claims from current accounts.
(2) The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft damage sufficiently at replacement value. The customer hereby assigns to us all compensation claims arising from this insurance. We hereby accept the assignment. If an assignment should not be permissible, the customer hereby irrevocably instructs his insurer to make any payments only to us. Any further claims on our part shall remain unaffected. The customer must provide us with evidence of the conclusion of the insurance on request.
(3) The customer shall only be permitted to sell the goods subject to retention of title in the ordinary course of business. The customer shall not be entitled to pledge the goods subject to retention of title, to assign them by way of security or to make any other dispositions that endanger our property. In the event of seizure or other interventions by third parties, the customer must notify us immediately in text form and provide all necessary information, inform the third party of our ownership rights and cooperate in the measures taken by us to protect the goods subject to retention of title. The customer shall bear all costs for which he is responsible that must be incurred in order to revoke the access and to recover the goods, insofar as they cannot be collected by the third party.
(4) The customer hereby assigns to us the claims arising from the resale of the goods with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing. We accept this assignment already now. If an assignment is not permitted, the customer hereby irrevocably instructs the third-party debtor to make any payments only to us. The customer is revocably authorized to collect the claims assigned to us in trust for us. The collected amounts shall be transferred to us immediately. We may revoke the customer’s collection authorization as well as the customer’s authorization to resell if the customer does not properly meet his payment obligations to us, is in default of payment, suspends his payments or if an application is made to open insolvency proceedings against the customer’s assets. Any resale of the claims requires our prior consent. The customer’s authority to collect the claims expires with the notification of the assignment to the third-party debtor. In the event of revocation of the authority to collect, we can demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.
(5) In the event that the customer’s receivables from resale are included in a current account, the customer hereby assigns to us his receivables from his customer from the current account in the amount of the purchase price including value added tax agreed for the resold goods subject to retention of title.
(6) The processing or transformation of the goods subject to retention of title by the customer shall always be carried out for us. The customer’s expectant right to the goods subject to retention of title shall continue in the processed or transformed item. If the goods are processed, combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing. The customer shall keep the new items in safekeeping for us free of charge. For the rest, the same provisions as for the goods subject to retention of title shall apply to the item created by processing, alteration or combination.
(7) At the request of the customer, we shall be obliged to release the securities to which the customer is entitled insofar as the realisable value of the securities, taking into account the customary bank valuation discounts, exceeds our claims arising from the business relationship with the customer by more than 10%. The valuation shall be based on the invoice value of the goods subject to reservation of title and the nominal value in the case of claims.
(8) In the case of deliveries of goods to other legal systems in which the retention of title under this section does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security interest. If further declarations or actions are required for this purpose, the customer will make these declarations and take action. The customer shall cooperate in all measures which are necessary and beneficial for the effectiveness and enforceability of such security interests.
§ 7 CONTRACTUAL OBLIGATION AND TERMINATION OF CONTRACT
(1) In the event of a breach of duty on our part, irrespective of the legal grounds (e.g. withdrawal, demand for damages instead of performance, termination for good cause), the customer may only terminate the exchange of services prematurely in addition to the legal requirements under the following conditions:
a) The breach of contract must be specifically objected to. The removal of the disturbance is to be demanded with the setting of a time limit. In addition, it shall be threatened that after the unsuccessful expiration of this deadline no further services will be accepted with regard to the notified disturbance and thus the exchange of services will be partially or completely terminated.
b) The deadline for the elimination of the disturbance must be reasonable. A period of less than two weeks shall only be reasonable in case of special urgency. In the event of a serious and final refusal to perform or under the other statutory requirements (§ 323 para. 2 BGB), the setting of a deadline may be waived.
c) The termination of the exchange of services (in part or in whole) due to the failure to remedy the disruption can only be declared within three weeks of the expiry of this period. The period is suspended during the duration of negotiations.
(2) The customer can only demand the rescission of the contract due to a delay in performance if we are solely or predominantly responsible for the delay, unless the customer cannot reasonably be expected to adhere to the contract due to the delay on the basis of a weighing of interests.
(3) All declarations in this context must be in text form to be effective.
(4) We can terminate the contractual relationship with immediate effect if the customer has made incorrect statements about the facts determining his creditworthiness or has definitively discontinued his payments or if proceedings are underway against him to make an affidavit or if insolvency proceedings or comparable proceedings under another legal system have been opened against his assets, unless the customer makes an immediate advance payment.
§ 8 GENERAL OBLIGATIONS OF THE CUSTOMER
(1) The customer shall be obliged to have all our deliveries and services inspected by a competent employee immediately upon delivery or performance or upon making them available in accordance with the provisions of commercial law (§ 377 HGB) and to notify us immediately in writing of any visible and/or detected defects, giving a precise description of the defect.
(2) The customer acknowledges that we are dependent on the customer’s comprehensive cooperation for the successful and timely performance of deliveries and services owed by us. He therefore undertakes to provide all information necessary for the proper performance of the services in a timely and complete manner.
(3) The Customer undertakes to thoroughly test our deliveries and services for usability in the concrete application before he begins productive use, and to carry out a function test before delivering his products to his customer. This also applies to delivery items which the customer receives free of charge as an addition or under warranty.
(4) The customer shall take reasonable precautions in the event that we fail to provide our deliveries and services properly in whole or in part (e.g. regular examination of the results, emergency planning).
§ 9 SUBJECT MATTERS
(1) Our deliveries and services shall have the agreed quality and shall be suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. In the absence of any express agreement to the contrary, our services shall be free of defects in accordance with the state of the art. The customer is solely responsible for the suitability and safety of our services for a customer application. An insignificant reduction in quality is not taken into account.
(2) The warranty is excluded:
a) if our products are not properly stored, installed, commissioned or used by the customer or third parties,
b) with natural wear and tear,
c) in case of improper maintenance,
d) if unsuitable equipment is used,
e) in the case of damage caused by repairs or other work carried out by third parties that has not been expressly authorized by us.
The burden of demonstration and proof regarding the non-existence of these reasons for exclusion lies with the customer.
The customer’s rights in respect of defects further presuppose that he has properly fulfilled his obligations to give notice of defects and to inspect in accordance with § 8 para. 1 and has given notice of hidden defects in text form immediately after their discovery.
(3) In the case of material defects, we may first provide subsequent performance. Subsequent performance shall be effected at our discretion by remedying the defect, by delivering goods or rendering services which do not have the defect, or by showing possibilities to avoid the effects of the defect. Due to a defect, at least two attempts to rectify the defect must be accepted. An equivalent new or the equivalent previous product version which does not have the defect is to be accepted by the customer as subsequent performance if this is reasonable for him.
(4) The customer shall support us in the analysis of the error and elimination of the defect, in particular by specifically describing any problems that occur, by informing us comprehensively and by granting us the time and opportunity necessary for the elimination of the defect.
(5) If we incur additional costs due to the fact that our services have been modified or incorrectly operated, we may demand that these costs be reimbursed. We can demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § 254 BGB applies accordingly.
(6) If we finally refuse to provide subsequent performance or if subsequent performance finally fails or is unreasonable for the customer, the customer may, within the framework of the statutory provisions, either withdraw from the contract or reduce the remuneration appropriately in accordance with the provisions of § 7 and additionally demand compensation for damages or reimbursement of expenses in accordance with § 11 if we are at fault. The claims shall become time-barred according to § 12.
§ 10 DEFECTS OF TITLE
(1) Unless otherwise agreed, we shall be obliged to provide our deliveries and services free of industrial property rights and copyrights of third parties (hereinafter referred to as property rights) only in the country of the place of delivery. If a third party asserts justified claims against the customer due to the infringement of industrial property rights by services rendered by us and used in accordance with the contract, we shall be liable to the customer within the period of time specified in § 12 as follows:
(2) We shall, at our discretion and at our own expense, either obtain a right of use for the services concerned, modify them so that the property right is not infringed or exchange them. If this is not possible for us under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal or reduction. The customer may not demand compensation for futile expenses.
(3) Our obligation to pay damages shall be governed by the statutory provisions under § 11.
(4) Our aforementioned obligations shall only apply if the customer informs us immediately in text form about the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to our discretion. If the customer ceases to use the delivery for reasons of mitigation of damages or other important reasons, he shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of an infringement of property rights.
(5) Claims of the Customer shall be excluded insofar as he is responsible for the infringement of property rights. Claims of the customer are further excluded if the infringement of the property right is caused by special specifications of the customer, by an application not foreseeable by us or by the fact that the delivery is modified by the customer or used together with products not delivered by us.
(6) Otherwise, the provisions of § 9 shall apply accordingly.
(7) Further claims of the customer against us and our vicarious agents or claims other than those regulated here due to a defect of title are excluded.
§ 11 LIABILITY
(1) We shall pay damages or compensation for futile expenses, regardless of the legal basis (e.g. from legal or similar obligations, material defects and defects of title, breach of duty and tort) only if we are at fault and to the following extent:
a) The liability for intent as well as from guarantee is unlimited.
b) In the event of gross negligence, we shall be liable to the amount of typical and foreseeable damage.
c) In other cases, we shall only be liable for breach of a material contractual obligation, for claims for defects and for delay, and only for compensation for typical and foreseeable damage.
Liability in this respect is limited per case of damage to twice the agreed sales price of the order affected by the damage.
According to case law, essential contractual obligations (cardinal obligations) are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
(2) In case of injury to life, body and health and in case of claims arising from the Product Liability Act, the statutory provisions shall apply.
(3) The objection of contributory negligence remains open to us.
§ 12 LIMITATION PERIOD
(1) The period of limitation is
a) for claims from purchase price repayment and withdrawal or reduction one year after delivery of the goods;
b) for claims due to material defects, one year from delivery of the goods in the case of a sales contract;
c) for claims due to defects in a contract for work and services, one year, starting from acceptance of the work;
d) one year in the case of claims arising from defects of title; if the defect of title consists of a right in rem of a third party, on the basis of which the goods can be reclaimed, the statutory limitation periods shall apply;
e) in the case of other claims for damages or reimbursement of futile expenses, two years, beginning from the time at which the customer became aware of the circumstances giving rise to the claim or had to become aware of them without gross negligence.
The statute of limitations shall commence at the latest upon expiry of the statutory maximum periods (§ 199 para. 3, para. 4 BGB).
(2) In the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent, as well as in the case of injury to life, limb and health and in the case of claims under the Product Liability Act, however, the statutory limitation periods shall always apply.
§ 13 EXPORT
(1) Our deliveries and services are generally intended to remain in the country of delivery agreed with the customer. The re-export of contractual products may be subject to approval by the customer. They are subject in particular to German, European and American export controls and embargo regulations. The customer must independently inquire about these regulations with the responsible authorities. We do not assume any liability for export permissibility and suitability.
(2) In any case, it is the customer’s responsibility to obtain the necessary permits from the respective competent foreign trade authorities before exporting such products. Any further delivery of contractual products by customers to third parties, with or without our knowledge, shall at the same time require the transfer of the export license conditions. The customer is liable to us for the proper observance of these conditions.
§ 14 CONFIDENTIALITY, DATA PROTECTION, REFERENCE
(1) The contracting parties undertake to treat as confidential all objects (documents, information, samples, plans) which they receive or become aware of from the other contracting party before or during the execution of the contract and which are legally protected or obviously contain business or trade secrets or are marked as confidential, also beyond the end of the contract, unless they are publicly known without breach of the obligation of secrecy or there is no interest worthy of legal protection. The customer shall keep and secure these items in such a way that misuse by third parties is excluded.
(2) We process the customer’s data required for the business transaction in compliance with the data protection regulations.
§ 15 SOCIAL CLAUSE
When determining the amount of any claim for compensation to be fulfilled by us arising from or in connection with this contract, our economic circumstances, the nature, scope and duration of the business relationship as well as any causation and/or fault contributions of the customer shall be taken into account appropriately in our favour. In particular, the compensation, costs and expenses to be borne by us must be in reasonable proportion to the value of the goods and services supplied by and rendered by us.
§ 16 TEXT FORM
All changes and additions to the contract must be in text form to be effective. The text form agreement itself can only be cancelled in text form.
§ 17 AUTHORITATIVE LANGUAGE VERSION
The English version of these General Terms and Conditions of Delivery and Service (ALB) is only a translation of the relevant German version for reading purposes. Should there be any differences in interpretation between the German and the English version, the German version shall prevail.
§ 18 CHOICE OF LAW
The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
§ 19 PLACE OF JURISDICTION
The place of jurisdiction for all disputes arising from and in connection with this contract is Karlsruhe, provided that the customer is a merchant, a legal entity under public law or a special fund under public law or if he is equal to such a legal entity or if he has his registered office or branch abroad. We are also entitled to bring an action at the customer’s registered office or at any other admissible place of jurisdiction.
Version 1.0 (Status: June 30, 2020)
Version 1.0 (Stand: 30. Juni 2020)