General Terms of Service

Of the trade division of Enbekon GmbH

1. Applicability

1) The following business terms apply expressly to all deliveries and services of Enbekon GmbH (ENB). Deviating or additional terms and conditions of the other contract party (purchaser) are only applicable, if the ENB has acknowledged and agreed to them explicitly.

2) The General Business Terms shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of movable objects with the same buyer without the ENB having to refer to these again in each individual case. Individual agreements reached in individual cases with the Buyer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these GBT. The content of such agreements must be set forth in a written contract or must be confirmed in writing by the ENB. Legally relevant declarations and notifications, which are to be submitted towards the ENB by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form to be valid.

2. Offers and Conclusion of the Contract

1) All offers are non-binding and merely represent an invitation for the customer to order or to submit a corresponding offer.

2) The contract shall be concluded once the confirmation of the order has arrived at the customer in written form or, at the latest, once the product has been delivered or once assembly has been started.

3) Conclusion of the contract is subject to the reservation that the ENB receives correct and punctual deliveries from its supplier. This shall not apply if the incorrect or delayed delivery by the supplier is attributable to intent or gross negligence by the ENB. Should the contract retroactively not be concluded, you will be notified by the ENB immediately and previous payments will be reimbursed.

4) The ENBs employees are not authorized to make oral collateral agreements or promises going beyond the contents of the written contract.

5) Drawings, illustrations, calculations and other performance data, shall only be binding if expressly agreed in writing.

3. Subject of Service

We collect and use your personal data, when needed, in order to facilitate the demands of our online services (usage data). In particular, this includes data to identify you and information about the start and the end as well as the extend to which you use our service. For the purposes of advertising, marketing research, and to improve our internet services, we may create user profiles when using an alias. You have the right to object to this use of your data. We are not permitted to combine the usage profiles with data about the bearer of the alias. By order of the competent authorities, we will be permitted in an individual case to provide information on inventory data if this is necessary to carry out prosecution proceedings, to enable the police forces of the German federal states to prevent crimes, to fulfil the statutory tasks of the constitution protection authorities of the German federal government, the German federal states, the Federal Intelligence Ser-vices or Military Intelligence, or to enforce intellectual property rights.

4. Prices and Terms of Payment

1) All prices are listed without tax, unless they are explicitly marked as gross prices.

2) The prices are non-binding, unless the contract states differently. (see point 2.1)

3) Provided nothing to the contrary is stated in the order confirmation, our prices shall apply “ex warehouse”.

4) You may pay the purchase price using the means of payment stated in the order confirmation/invoice.

5) Payments are always credited towards the oldest payment due. If costs and interest have already arisen, the ENB shall be entitled to use the payment first for the costs, then for the interest and last for the main debt. Cheques shall be only accepted as conditional payment.

6) The ENB reserves the right to change its prices accordingly if there are any reductions or increases in costs after conclusion of the contract, particularly due to its suppliers changing their prices. The change in price is limited to the change in cost. The ENB shall provide proof of this to the customer upon request.

7) The customer shall only have the right to offset if his/her counterclaims have been legally confirmed or acknowledged by the ENB. He shall only be entitled to a retention right in case his claim is based on the same contractual relationship.

5. Delivery and shipment

1) Delivery dates shall only be binding if they have been confirmed by ENB in writing.

2) ENB is entitled to partial deliveries, while considering the customers and ENB’s interests.

3) Delivery and performance delays due to force majeure or unforeseeable disruptions of service from ENB or its suppliers - this particularly includes strikes, lockouts, official orders, as well as unforeseen hindrances that are not the will of ENB, which temporarily stop ENB from delivering in time, may entitle ENB, even in the case of binding agreements on periods and dates of completion, to extend the delivery period for the duration of the hindrance. Alternatively, ENB may withdraw from the contract agreement partially or completely on account of the incomplete part of the contract agreement. The same applies, when the delays are due to a failure of the customer to fulfil his obligations or the late or incorrect supply by third parties.

4) Should the hindrance last longer than 3 months, the customer has the right to cancel the contract in regard to the not yet fulfilled part after an appropriate period of time. Should the delivery time be prolonged, or should ENB be released from its obligation, the purchaser may not derive damage claims against ENB therefrom.

5) The costs for packaging, delivery and transportation insurance shall be charged to the supplier, unless other agreements were made in writing. ENB is entitled to choose the shipping method as well as the route at its own discretion.

6. Passing of Risk and Place of Performance

1) The risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon delivery of the article, or in case of shipment, to the carrier or the person or company charged with the delivery. If an acceptance procedure has been agreed on, it is authoritative for the passing of risk. The statutory provisions of the law on contracts for services shall also apply to all other respects. Should the customer be delayed in accepting the goods, the transfer shall still be deemed to have taken place.

2) The place of performance is ENB’s registered office.

7. Warranty

1) Claims for defects by the Customer shall require him to have properly fulfilled his obligations to inspect and complain in accordance with section 377 of the German Commercial Code (Handelsgesetzbuch, HGB). In the event of a defect being revealed during inspection or at a later date, ENB must be notified without delay. The notification is considered to be immediate if it takes place within two weeks, to keep this deadline it is sufficient for the notification to have been sent within this period of time. Irrespective of this obligation for inspection and reporting of complaints the Customer must report obvious defects (including false and shortfall in delivery) within two weeks from delivery in writing, whereby the timely despatch of the report shall also be sufficient to keep the deadline. If the Buyer fails to carry out the proper inspection and/or report of defects, ENB’s liability for this defect is excluded.

2) Should the delivered item be faulty or defective, the customer may either choose to demand repair of the defect (rectification) or the delivery of a flawless item (replacement). Should the customer fail to state which of these two rights he chooses, ENB reserves the right to set him a fair time limit. Has the customer not chosen within this time limit, the right to choose is passed to ENB upon expiration of said time limit.

3) There is no product defect for a solar module especially if, on the day of the delivery, the specified electrical power of a module lies within the tolerance limits given in the brochure or as specified on the product.

4) The purchasers claim for damages and/or for reimbursement of wasted expenditures shall be subject to the limitations according to section 8; unless as admitted thereunder, such claims shall be excluded.

8. Other Liability

1) In case of breach of contractual and noncontractual duties ENB shall be liable in accordance with the relevant statutory provisions, as long as they do not fall under any cases specified in these Conditions including the provisions below.

2) ENB shall be liable to compensate, irrespective of legal ground, in the event of intent and gross negligence. In the case of ordinary negligence, ENB shall be liable only
    a) for damage resulting from injury to life, body or health;

    b) for damage due to breach of an essential contractual duty (an obligation that has to be fulfilled to enable the contract to be duly performed and on the satisfaction of which the other party regularly relies and may rely); in this case ENB's liability shall be limited to compensation for the foreseeable damage typically occurring.
3)The limitations of liability according to 8.2 shall not apply if ENB conceals a defect with intent to deceive or if ENB has warranted the quality of the goods. The same shall apply to the Customer’s claims under the Product Liability Act.

4) The Customer may withdraw or cancel on the grounds of a breach of duty that is not a defect, only if ENB is responsible for the breach of duty. The Customer’s free right of cancellation (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. Otherwise the statutory requirements and legal consequences shall apply.

9. Reservation of Proprietary Rights

1) ENB shall retain the proprietary rights to the goods until all payments under the contract have been received.

2) Should the customer act in a way contrary to the contractual obligations, in particular in the event of a default in payment, we shall be entitled to withdraw from the contract and to demand the return of the goods on the basis of the reservation of title and the rescission. In the event that the Customer does not pay the due purchase price, ENB may only assert such rights if ENB has previously set the Customer a reasonable period for payment without result or if the setting of such a period is not necessary according to the statutory regulations. After the recall of the goods, ENB is entitled to resell them. The proceeds of sale - minus appropriate utilization costs – shall be subtracted from the Customer's debts.

3) The buyer is permitted to resell or process goods that are subject to retention of title in the ordinary course of business. Ordinary course of business shall not exist if the conditional commodities are not sold under retention of title or when the contracting party agreed on an effective prohibition of assignment with its customer. The authorization shall expire as soon as the Customer is in default with payment or has to file for bankruptcy. The customer shall hereby assign ENB all of its account receivables of the item, including related rights and security rights to the amount of the invoice value of the reserved goods. This assignment is hereby accepted by ENB.

4) The customer is obliged to provide ENB with exact information relevant to the pursuance of ENB’s rights of property or co-property, when asked to do so. Should the authorization specified in 9.3 expire, the Customer is obliged furthermore to provide ENB with all information and corresponding documents required to pursue the assigned claim.

5) The Customer shall store the goods free of charge for ENB. He shall take out an adequate insurance against common risks (fire, theft, water etc.). The customer hereby assigns to ENB the insurance claims resulting from loss or damage as aforementioned vis-à-vis insurance companies or other persons obliged to pay compensation in the amount of the invoice value of the goods. ENB accepts this assignment.

10. Documents

ENB reserves all rights of ownership and copyright in illustrations, drawings, calculations and other documents. They may not be copied or made accessible to others without permission. ENB is entitled to demand sent documents back, in case the contract with the recipient of the offer is not concluded.

11. Right of Modification

ENB is entitled to perform technical modifications or maintenance work at any time, as long as they are reasonable and in the interest of the Customer and ENB.

12. Limitation of Rights

1)Notwithstanding § 438 para. 1, no. 3 BGB (German Civil Code), the general limitation period for claims for defects is one year from delivery. If acceptance has been agreed, the limitation period begins with the acceptance.

2) In case the delivered good is a building or an object typically used in the construction of a building (building material), that’s defectiveness subsequently caused the defect of a building itself, the limitation period comes to five years after delivery according to the statutory provisions (§ 438 I Nr.2 BGB (German Civil Code)). Statutory special regulations for in rem claims to return of third parties (§ 438 sub-section 1 no. 1 German Civil Code), wilful deceit of the vendor (§ 438 sub-section 3 German Civil Code) and for claims of recourse against the supplier in final supply to a consumer (§ 479 German Civil Code) shall also be unaffected.

3) The aforementioned periods of barring of purchase law shall also apply to contractual and extracontractual claims to damages of the Customer based on a defect in the commodities unless application of regular statutory barring by limitation (§§ 195, 199, German Civil Code) would lead to a shorter barring in the individual case. The periods of barring of the Product Liability Act shall remain unaffected in any case. Apart from this, the statutory periods of barring shall exclusively apply to claims to damages of the Customer pursuant to Section 8 of the present Terms and Conditions of Sale.

13. Applicable Law and Jurisdiction

1) Unless inconsistent with mandatory legal provisions, German law is to be applied. The applicability of the UN-purchase law is excluded.

2) The place of jurisdiction for this contract is the register office of ENB. ENB is however entitled to take legal action against the customer in the court, which holds jurisdiction at his place of business.
as of: 25.10.17
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