General Terms and Conditions of Sale and Delivery of ClickCon GmbH & Co.KG
I. Area of validity – subject of the contract
- Our General Terms and Conditions of Business (hereinafter “GTC”) are valid for the delivery of goods and chattels after requirement of the concluded contract between the costumer and us. They are also valid for all future business relations, even if they are not once more agreed explicitly.
- Our General Terms and Conditions of Business (hereinafter “GTC”) shall be exclusively applicable; we will not acknowledge any adverse provisions or any customer’s provisions deviating from our GTCs, unless we accepted these other provisions expressly in writing. Our GTCs shall apply also in the event that we perform supply to our customer with knowledge of any customer’s provisions adverse to or deviating from our GTCs, but the supply taking place without caveat.
II. Offer – Offer documents – Conclusion of contract
- Our offers are subject to change without notice. Any contract shall be considered as awarded only if it was confirmed in writing or if it is being performed already.
- The customer’s order is a binding offer, which we could accept after 4 weeks by sending a confirmation of contract award or by shipment of the goods. Offers that are submitted before, are subject to change without notice.
- We reserve the property right and the copyright in any pictures, drawings, calculations or other documentations. This shall apply also to such documents defined as “confidential”. The customer shall be required to receive our express consent in writing prior to passing on such documents to any third party.
- The documents that form part of the quotation, such as illustrations, drawings, dimensions and weight details, shall only be authoritative on an approximate basis.
III. Prices and Payment conditions
- The agreed fee has to be paid. List prices and quotation prices shall be without obligation. The prices on the date of delivery shall apply. Unless agreed otherwise, our prices shall be exclusive of packaging and transport costs.
- Our prices are calculated ex works, plus package, freight, papers, postage, insurances and respectively applicable value added tax shall apply, unless differing provisions are stated in the confirmation of contract.
- Our invoices shall be payable immediately, within 7 days of the invoice date, unless agreed otherwise in writing. Payments may not be made by bill of exchange.
- In the event of default, interest in the amount of the customary interest rates of major banks for unsecured current account credit facilities will be charged. The same will apply in the event of postponement of payment.
- If the purchaser defaults with the payment or if circumstances become known that call the purchaser’s creditworthiness into question (e.g. application for a deferred payment, failure to honour a cheque, application to institute insolvency proceedings, suspension of payments), all receivables shall immediately fall due for payment. In that case, we shall be entitled to defer performance under the contract, inasmuch as it has not yet been executed in full, until payment in full, and/or only to execute it against payment in advance or initial collateral. We shall further be entitled to take back delivered goods at the purchaser’s expense, without automatically availing ourselves of the right to withdraw from the contract. This shall not affect any further statutory claims.
- Claims may only be offset against counterclaims that we have acknowledged or that have been finally and absolutely approved. No rights of retention may be exercised on the basis of counterclaims that we have not acknowledged.
IV. Reservation of title
- The goods delivered shall remain our property until settlement of all outstanding receivables arising out of the business relationship, including until cheques have been honoured.
- Distributors shall be permitted to sell our reserved goods in their own name during the normal course of their business. The purchaser hereby assigns to us the receivables arising out of the resale transaction. We hereby accept such assignment. In the event of sale of the reserved goods after processing or combination with other goods not belonging to us, the receivables shall be assigned in the amount of the invoice for our reserved goods. The purchaser shall only be authorised to collect the assigned receivables for as long as it duly meets its payment obligations towards us. The purchaser must reserve ownership with respect to its own customers until they have paid the purchase price in full.
- The purchaser shall not be permitted to pledge or transfer ownership of our reserved goods by way of security. It shall be obliged to immediately inform us of any access by third parties to the reserved goods. The purchaser shall not be permitted to agree on prohibitions of assignment. The foregoing shall not limit the terms under II. 3.
V. Delivery terms, risk
- If we are prevented from fulfilling our delivery commitment, through force majeure, strike or lock-out or unforeseen events, which could not be avoided despite the expected precautionary measures, irrespective of whether these arise at our own premises or at the premises of a supplier, for example operational problems, transport delays and incorrect and late delivery by upstream suppliers, then the delivery term shall be extended accordingly, even in the event of pre-existing delivery default. If such events mean that subsequent delivery becomes impossible or if we cannot reasonably be expected to deliver, we shall be entitled to fully or partially withdraw from the contract.
- Shipment shall be at the purchaser’s risk, even if carriage paid delivery has been agreed. We accept no liability for damage during shipment. We shall only contract breakage insurance at the purchaser’s request and subject to a charge of the insurance premium. We shall only provide a credit note for any damage provided the insurance company has allowed the claim. We accept no further obligations. Unless explicitly agreed otherwise, our deliveries shall be shipped uninsured.
- In the event of delivery default, the Purchaser must allow a reasonable additional time. In the event of delivery default or of subsequent impossibility of performance for which we are not responsible, no damages may be claimed, unless there was intent, or our management or senior executives committed gross negligence, or if an exclusion of liability is inadmissible on other grounds.
- If shipment of the deliveries is delayed at the purchaser’s request by more than two weeks beyond the agreed delivery date, or, if no precise delivery date was agreed, after notification of readiness for shipment by the seller, then the seller may charge a flat rate for storage of 0.5% of the price of the delivery item, for each month (if applicable on a pro rata temporis basis), albeit up to a maximum of 5 %. The purchaser may offer proof that the seller either did not incur loss or else incurred a significantly lower loss. The seller may offer proof that it incurred a higher loss.
In the event of defects, including in the event of the absence of guaranteed characteristics, we shall provide warranty as follows:
- A complaint on the ground of obvious external defects at the time of delivery can only be allowed provided it is made in writing immediately, and at the latest within 6 days following receipt of the goods.
- In the event of justified complaints, we may elect either to remedy the defect or to deliver faultless replacement goods. The purchaser shall have a right of withdrawal if, despite having been set a reasonable additional period to remedy a defect acknowledged by ourselves, we allow this to expire without effect, through our own fault. In the event of acknowledged shortfalls, we may either make up the shortfall by delivery or else raise a credit note accordingly.
- The warranty shall not cover normal wear and tear, damage due to inappropriate or negligent treatment, excessive load, unsuitable operating facilities and failure to observe operating instructions. The same shall apply in the event of damage that occurs during alterations or repair work by the purchaser or by third parties whom we have not called in.
- We or our legal representatives and vicarious agents accept no liability for damage that arises under the warranty, owing to breaches of incidental contractual obligations, incorrect advice, unauthorized act, culpable breach of the remedy or replacement delivery obligation, or on other legal grounds, in particular inasmuch as the damage does not occur to the delivery item itself, unless there was intent, or our management or senior executives committed gross negligence, or if exclusion of liability is inadmissible on other grounds. In addition, no damages may be claimed in the event of the absence of guaranteed performances if the assurance was not specifically intended to avoid consequential losses due to defects.
- The guarantee terms and conditions and periods for our solar technology products shall in all cases be based on manufacturer’s details. Guarantees given in our price lists, prospectuses, quotations and other documents shall be without obligation. In the event of performance under the guarantee, we reserve the right to arrange for the manufacturer of the product in question to check whether a claim may be made under the guarantee. If so, then it shall be a matter for the product manufacturer to provide appropriate indemnification or to arrange for the repair. The manufacturer of the product confirmed by it as defective shall bear the costs of the work under guarantee.
VII. General liability
- In the event of intent or gross negligence on the part of the seller or of its representative or vicarious agent, the seller shall be liable in accordance with the statutory provisions.
For the rest, the seller shall only be liable under the “Produkthaftungsgesetz” [German Product Liability Act] for loss of life, limb or health, or for the culpable breach of material contractual obligations.
However the damages claim for breach of material contractual obligations shall be restricted to the foreseeable contractually typical damage.
However, liability for damage caused by the delivery item to the purchaser’s objects of legal protection, such as damage to other property, shall be entirely excluded, with the exception of liability for intent or gross negligence or owing to loss of life, limb or health.
- The rule laid down in the previous paragraph shall also cover damages in addition to performance and damages in lieu of performance, irrespective of their legal basis, in particular owing to defects, the breach of obligations arising out of the contractual relationship or due to an unauthorized act. It shall also apply to the claim for reimbursement of wasted expenditure.
- In the event of delay in performance in instances of intent or gross negligence on the part of the seller or of its representative or vicarious agent, the seller shall be liable in accordance with the statutory provisions. In other circumstances in which performance is delayed, the seller’s liability for damages in addition to performance and for damages in lieu of performance shall be limited to 3 % per week, up to a maximum of 15 % of the value of the delivery. The purchaser may make no further claims, even after expiry of any time limit for performance given to the seller. The above limit shall not apply to liability for loss of life, limb or health.
- Inasmuch as delivery is impossible, the purchaser shall be entitled to claim damages in accordance with statutory provisions. However, the purchaser’s claim for damages in addition to performance or damages in lieu of performance, and for the reimbursement of wasted expenditure, shall be limited to 10 % of the value of that proportion of the delivery that cannot be used as a result of the inability to deliver. The purchaser may make no further claims owing to inability to deliver. This restriction shall not apply if there is liability in instances of intent, gross negligence or owing to loss of life, limb or health.
- The purchaser may only make recourse claims against the seller pursuant to § 478 BGB [German Civil Code] inasmuch as the purchaser has not concluded any agreements with its own customer beyond those relating to statutory defect claims.
- The period of limitation for damages claims owing to defects, irrespective of their legal basis, shall be one year.
- The period of limitation shall also apply to other damages claims against the seller, irrespective of their legal basis. They shall also apply inasmuch as the claims are not associated with a defect.
- The above period of limitation shall apply subject to the following proviso:
The period of limitation shall not apply in the event of intent;
For the rest, the period of limitation shall not apply if the seller has fraudulently failed to disclose a defect.
Furthermore, the period of limitation shall not apply in cases of loss of life, limb, health or freedom, in the event of product liability claims, grossly negligent breach of obligation, or in the event of culpable breach of fundamental contractual obligations.
- The period of limitation in relation to all damages claims shall commence upon delivery.
- Where reference to damages claims is made in this provision, this shall include claims for reimbursement of wasted expenditure.
- Unless stated otherwise, all prices shall be net of value added tax at the statutory rate, packaging and transport from the factory/warehouse.
- We reserve the right to apply price changes without prior notification of the purchaser. The seller reserves the right to apply price adjustments due to errors and on invoices, and also on price lists, delivery notes, order confirmations and quotations.
IX. Place of performance
- The place of performance for all obligations arising out of the contractual relationship shall be Freiburg.
- The place of jurisdiction for all disputes arising out of the contractual relationship, including complaints relating to bills of exchange and cheques, shall be Freiburg. We may also elect to sue the purchaser at the court having jurisdiction for its registered office.