General terms of delivery and payment
payment terms of BayWa r.e. Solar Energy Systems GmbH (herein after called BayWa r.e. )
I. SCOPE OF APPLICABILITY OF THE TERMS
1) These delivery and payment terms (hereinafter called: the terms (apply only in relation to companies within the meaning of sections 14, 310 BGB and legal entities of public law and public law special funds as customers (buyers) of products traded by BayWa r.e. (hereinafter called business partners - BP). They apply to all legal business transactions or business conclusions including associated subsidiary and auxiliary business transactions concerning or being caused by the sale of products traded by BayWa r.e. directly or indirectly.
2) The business transactions including the auxiliary, subsidiary and implementation business transactions (deliveries and services) associated with them and the preceding offers of BayWa r.e. are exclusively subject to these terms. They also apply to legal debt relationships caused directly or indirectly by business transactions between BayWa r.e. and the BP and to future business relationships between them, should BayWa r.e. refer to them.
3) If BayWa r.e. as a trading company is subject to commercial or legal restrictions on the procurement side due to terms of its own suppliers, including those of components, single parts and software, then these restrictions also apply to the BP (customer) of BayWa r.e. if and inasmuch it has informed him on the occasion of the business transaction about the restriction and its content.
II. INCLUSION / FORM / CONTRADICTORY SETS OF TERMS
1) Through notices or references by BayWa r.e. in offers, acceptances (in the legal meaning), order confirmations and other equivalent documents, these terms become part of the business transaction with the BP, where applicable also through the signing of framework and condition agreements.
2) Otherwise they become part of the contract with the uncontradicted acceptance of the offer of BayWa r.e. or the receipt of the acceptance declaration from BayWa r.e. for a prior offer (order) by the BP, with reference to the terms in the acceptance declaration or with the uncontradicted receipt of its order confirmation.
3) All declarations, communications, announcements, confirmations, approvals and similar communication to which these terms refer are only legally effective if they have been issued in writing or equivalent form and inasmuch as there are no provisions to the contrary in these terms in individual cases. Equivalent means the transmission by fax, email or electronic data transmission. If these formal requirements are not complied with, the respective pronouncements do not have legal effect.
The same applies to the case of a modification or amendment of these terms (section IV 5). Inclusion applies also in the case of business transactions via electronic media.
4) The BP has access to the terms via their publication on the internet portal or on the website of BayWa r.e. where he can view and open them at any time. In the exceptional case of oral business transactions, these terms also apply with corresponding oral reference by BayWa r.e.
5) BayWa r.e. rejects any business and purchasing terms of its BP should he refer to them on the occasion of commencing the business relationship or during the processing of the same, including any reference in orders, order letters, acceptance declarations and the like inasmuch as these do not correspond with the terms of BayWa r.e. BayWa r.e.’s rejection of the terms of its BP also applies in cases in which BayWa r.e.’s own terms do not include any provisions. This rejection applies equally to future business transactions.
III. OFFER AND CONTRACT SIGNING / ORDER CONFIRMATION
1) The offers of BayWa r.e. are non-binding if they are explicitly identified as non-binding. Otherwise BayWa r.e. is bound by its offers including their terms and prices for a duration of 30 days.
2) If the order by a BP can be qualified as an offer according to section 145 BGB, BayWa r.e. can accept this within 30 days unless an extended (longer) acceptance period has been agreed.
3) For the scope of delivery and due date of the fee (purchase price) to be paid by the BP, the written order confirmation of BayWa r.e. is generally decisive. In case of a business transaction based on an offer from BayWa r.e., this is decisive for the scope of delivery in the absence of a further order confirmation.
4) Deviations from these terms in the order confirmations or offers of BayWa r.e. supersede these terms and conditions within the scope of the deviation in the concrete individual case (principle of the priority of concrete definitions in order confirmations and offers over the general terms and conditions).
5) The business transactions are based exclusively on the commercially relevant legal actions (offer, acceptance, order confirmation, commercial confirmation letters where applicable). Ancillary agreements or amendments of the documents relevant to the contract completion including these terms require an explicit confirmation from BayWa r.e. to be legally effective.
6) The conclusion of the contract is subject to the condition precedent that there are no obstacles due to national or international regulations, in particular, export control regulations as well as embargoes or other sanctions. Any deliveries and services for the performance of the above contracts shall be under the proviso that the above mentioned obstacles do not occur.
IV. OFFER DOCUMENTATION
1) BayWa r.e. reserves proprietary and copyrights to its drawings, illustrations, calculations and developed software. This also applies to their publication via electronic media. These documents may not be disclosed to third parties.
2) BayWa r.e. commits with regard to plans and other documentation, irrespective of their form of communication, identified by the BP as confidential, to only disclose them to third parties with his approval and to otherwise keep them secret.
3) The above-mentioned secrecy obligation does not apply to communications considered as generally known within the relevant business circles.
1) Unless stated otherwise in the offer of BayWa r.e. and/or its order confirmation, the “ex works” or “ex location” of the responsible branch of BayWa r.e. base prices excluding packaging and shipping costs and any insurance premiums (transport insurance), which are charged separately, apply. BayWa r.e. is entitled - but not obliged - even without the explicit instruction of the BP, to insure the products or goods to be delivered against transport risks. The (pro rata) insurance costs shall also be charged to the BP.
2) If no value added tax is shown, the offer prices of BayWa r.e. are net prices. The value added tax shall be shown separately on the invoice or equivalent commercial document at the statutory rate applicable at the date of invoicing.
3) Discount deductions are only permitted in the case of an explicit approval by BayWa r.e. or in the case of a corresponding announcement in its relevant commercial document.
VI. PAYMENT OF THE PURCHASE PRICE / DUE DATE / DEFAULT
1) The fee to be paid by the BP is due without need for separate invoicing with the issuance of the order confirmation even if this is not additionally marked as invoice. The due date of the payment obligation occurs independent of the date of delivery, i.e. also prior to its completion.
2) In the absence of an order confirmation from BayWa r.e. the payment obligation becomes due with the business transaction, i.e. offer and acceptance.
3) The due date of the BP’s payment obligation is not linked to a concurrent performance (delivery) by BayWa r.e.
4) If the BP does not meet his payment obligations or payments are late or discontinued or he requests a deferment or concrete circumstances become known to raise reasonable doubts about his credit rating, BayWa r.e. is entitled to declare all outstanding claims against him as due. In this case, BayWa r.e. may use its security rights, in particular its rights to retention of title, in the scope agreed or defined in these terms without the cause of default having to be due to the buyer and without obligation to withdraw from the agreement.
5) In case of default, which for the remainder is governed by the statutory provisions
unless stated otherwise in the agreements between BayWa r.e. and the BP or these terms, the BP must pay from the commencement of the same a default interest of 8% above the respective applicable base rate on the outstanding payment claim by BayWa r.e.
6) The place of fulfilment for payments by the BP is the registered office of BayWa r.e. Decisive for timely payment is in all cases the receipt of the same at BayWa r.e. or the definitive validation or redemption of a payment surrogate. BayWa r.e. is not obliged to accept such surrogates (cheques) unless these have been endorsed or guaranteed in accordance with standard banking practice. The acceptance of such surrogates is in all cases conditional on fulfilment. Credits to the business account of BayWa r.e. are only counted as definitive validation if they can no longer be revoked or such revocation is no longer permissible in accordance with the statutory provisions of the national and/or international payment system.
VII. DELIVERIES WHICH ARE NOT SUBJECT TO VAT
If the delivery is not subject to VAT in accordance with section 4 no. 1 letter b) in conjunction with section 6 a of the German VAT Act (UStG), the customer must sign and return a confirmation of arrival. The confirmation of arrival must be returned to the company within 30 days from the handover of the object of the purchase by the company or a third party acting on his behalf. If the customer does not meet his obligation, VAT will be charged retrospectively. Ownership of the object of the purchase shall remain with the company until the confirmation of arrival has been received and/or the VAT which has been charged retrospectively has been paid.
VIII. OFFSET / RETENTION RIGHT / EXCLUSION OF ASSIGNMENT
1) BayWa r.e. is entitled to offset all claims it has in relation to the BP against all of his claims irrespective of their legal basis. This also applies if the mutual claims are based on different legal relationships.
2) The BP is not entitled to offset any claims due to him, in particular on account of subsequent performance, compensation claims or other counter claims, or to exercise any retention rights with regard to claims by BayWa r.e. on account of them unless the counter claims have been legally established as enforceable or are not disputed by BayWa r.e.
3) Without the approval of BayWa r.e. the BP is not entitled to assign any claims due to him from the business transaction, based on these terms, to third parties.
IX. DELIVERY PERIODS
1) The delivery period commences with the transmission of the order confirmation - where applicable with the period specified therein -, in the absence of an order confirmation having been issued, with the acceptance of the offer from BayWa r.e. or the acceptance by BayWa r.e., however, not before the documentation, approvals, releases have been provided and any prepayments due as agreed in these terms or individual contracts (prior performance) have been received.
2) The delivery period shall have been met if prior to its expiry the delivery object has left the factory or branch of BayWa r.e. or readiness to dispatch has been communicated. This renders the delivery complete - including within the meaning of sales tax legislation.
3) In the absence of other explicit agreements, the deadlines and time periods specified by BayWa r.e. are not fixed deadlines.
4) Delivery delays due to force majeure or events which significantly make the performance for BayWa r.e. more difficult or impossible - including any subsequently arising material procurement difficulties, traffic disruptions including those affecting the international transportation of goods, in particular during import, operational disruptions, strike, lockout, other authority instructions for which BayWa r.e. is not responsible, even if these occur at its own suppliers - are not the responsibility of BayWa r.e. even for agreed binding deadlines and time periods. They entitle BayWa r.e. to delay the delivery by the duration of the obstruction plus a reasonable additional period or to cancel the agreement with regard to the part not yet fulfilled or in full.
5) If the obstruction outside the responsibility of BayWa r.e. within the meaning of clause 4 above lasts for more than two months, the BP is entitled, after setting a reasonable subsequent period, to withdraw from the part of the agreement not yet fulfilled. Any further claims by him are excluded. The same applies if BayWa r.e. is not responsible for the delayed delivery for other reasons.
6) BayWa r.e. is entitled to make partial deliveries at any time.
7) The delivery periods are extended in all cases by the period during which the BP does not meet his obligations towards BayWa r.e. even if these are based on other legal justifications and other business transactions with him.
8) If the BP is late with acceptance or violates other obligations to contribute, BayWa r.e. is entitled to claim compensation for any resulting damages including any additional costs. Further contractual or statutory claims are reserved.
9) If the situation in accordance with clause 7 or 8 above or section VI clause 4 or 5 of these terms has arisen, the material and price risk, in particular also the risk of accidental damage or deterioration of the purchased object passes to the BP.
10) If the BP does not accept the goods by the end of the delivery period, BayWa r.e. is entitled to charge the BP storage and finance costs from the second week after the end of the delivery period. These are calculated on the basis of the output of the non-accepted solar modules and amount to €0.60 /kWp per week commenced. The storage and finance costs correspond to the liquidity costs and space requirement for solar modules arising regularly from late payment and extended storage.
X. TRANSFER OF RISK / ASSIGNMENT OF INSURANCE CLAIMS
1) With the notification of readiness to dispatch the material and price risk passes to the BP, otherwise in addition to the cases governed above in section IX clause 9, if the shipment has been passed to the person providing its transportation or has left the warehouse of BayWa r.e. or the warehouse of the prior supplier (for drop shipment) for the purpose of shipment or transportation. This applies irrespective of whether the transportation or shipment takes place on behalf of BayWa r.e. or the BP.
2) Goods notified ready for dispatch must be called up without delay. If this does not happen, BayWa r.e. is entitled to send these at its discretion at the expense and risk of the BP or to store it at its discretion and charge the storage costs to the BP.
3) If BayWa r.e. has taken out transport insurance and the BP has met his payment obligation concerning the goods insured for transport in full towards BayWa r.e., it will assign its claims against the insurer to the BP to the extent permissible by law and the insurance contract, unless the assignment is not permitted by the insurance contract or the provisions of the insurer or the statute governing insurance contracts (VVG) and other statutory regulations.
XI. QUALITY / DIMENSIONS / QUALITY CRITERIA / TRANSPORT ROUTES
1) The quality and dimensions of the products subject to the business transaction are governed by the DIN standards or material data sheets, certificates etc. and other product-specific standards and calculations unless other standards, in particular foreign standards, have been agreed or are part of the content of the offer or the order confirmation from BayWa
r.e. If no DIN standards or material data sheets, certificates etc. exist, the corresponding European standards apply and, in their absence, commercial practice.
2) The reference to standards, material data sheets or factory test certificates of any kind and/or the description of the contractual deliveries with corresponding information does not constitute an assurance of properties. Even if the delivery or performance is intended for a specific type of use by the ordering party and this becomes part of the contract, this does also not constitute an assurance of properties.
In the absence of explicit written announcements in the corresponding commercial documents of BayWa r.e., it is not obliged to the BP with regard to guarantees or assurances of properties of any kind.
3) Liability from assurances of properties or guarantees is excluded in all cases where this is not based on any written assurance by BayWa r.e.
4) Unless specifically stated otherwise, BayWa r.e. may select or define the transport route and use of transportation means at its discretion for the dispatch of the products subject to the business transaction.
XII. MOUNTING INSTRUCTIONS
The mounting instructions in their respective applicable version apply to all future purchase agreements or other agreements for the novotegra or Creotecc mounting systems or parts thereof and can be viewed at any time on the internet at http://solarenergysystems.baywa-re.com/de/montagesysteme/montageanleitungen/.
XIII. NOTICE OF DEFECTS / SUBSEQUENT PERFORMANCE
For quality and quantity defects of the delivery object and for the lack of assured characteristics as well as in the case of delivery discrepancies, BayWa r.e. has the following subsequent performance obligations:
1) The BP must examine the delivery object without delay after delivery with reasonable thoroughness given the circumstances; any detected defects must be reported without delay, for not externally visible damage no later than after seven days following delivery in the correct format (section II of these terms). Decisive is the date of receipt of this notice of defects at BayWa r.e. Defects which cannot be detected within this time period even with a most careful examination must be reported without delay after discovery, halting any adaptation and processing and taking account of the statutory regulations. The requirement to give notice of defects also applies to business relationships which are not based on a legal purchase (for example, those to be assessed according to the legislation covering works or service agreements etc.). If the notice of defects is not given on time, the BP forfeits the right to assert subsequent performance claims. He bears the full burden of proof for all claim conditions, in particular for the defect itself, for the time of defect detection and for the timeliness of the notice of defects.
2) For defects in the goods following a justified and timely notice of defects, BayWa r.e. provides at its discretion subsequent performance through repair or replacement.
3) If the subsequent performance fails, the BP may in principle demand at his discretion a reduction of the charges (reduction) or cancellation of the contract (withdrawal). In case of only a minor contract violation, in particular for only minor defects, he has, however, no right of withdrawal. If he chooses, after a failed subsequent performance, to withdraw from the contract because of a material or legal defect, he has no additional compensation claims due to the defect unless BayWa r.e. acted with intent or gross negligence. If the BP demands compensation after failed subsequent performance and with a correspondent culpability of BayWa r.e., the goods remain with the customer where this is reasonable. The compensation for damages is limited to the difference between the purchase price and the value of the faulty object. This does not apply if BayWa r.e. has violated a key contractual obligation (cardinal obligation) with intent or gross negligence.
4) If the BP does not afford BayWa r.e. an immediate opportunity to inspect the defect and in particular does not provide the contractual object complained about or samples or parts thereof without delay upon request, all warranty claims are void.
5) For contractual objects which have been sold as downgraded material, the BP has no entitlement to subsequent performance concerning the specified defects and those which can normally be expected.
6) Any further inalienable claims of the BP concerning product liability remain unaffected by these provisions.
7) In the case of defects occurring in so-called wearing parts of products or units supplied by BayWa r.e., the company is only obliged to replacement or repair at its own discretion and excluding any further claims; this also applies in the case of repeated replacement deliveries or replacements for wearing parts within the limitation periods for defect claims defined in these terms or otherwise contractually agreed or specified as inalienable in the statutory regulations. Replacement deliveries or subsequent deliveries or the replacement of wearing parts do not have a suspensive effect within the meaning of the regulations of sections 203 ff. BGB unless this contradicts mandatory statutory provisions. Wearing parts or such individual parts or components which according to general consensus of the relevant circles must be assigned such a function or characteristic (for example, wires, pins, winches, bolts). This applies in particular to such parts which due to their use are subject to particular emissions in accordance with their function (for example from moisture, heat, fire, storm and similar extreme weather) and/or need to be replaced during the operation of the plant due to wear.
8) BayWa r.e. shall bear its own transport, travel, labour, assembly and material costs arising during subsequent performance.
9) Information in accordance with section 36 VSBG (Consumer Dispute Arbitration Act):
BayWa r.e. is not obliged to participate in dispute arbitration proceedings before a consumer dispute arbitration body and will not voluntarily participate.
XIV. GENERAL LIMITATION OF LIABILITY / LIMITATION PERIOD
1) Unless these terms contain a different provision or binding statutory provisions to the contrary exist, BayWa r.e. is only liable to compensation for the violation of contractual or non-contractual obligations in case of intent or gross negligence. Liability for slight negligence as well as the gross negligence of employees of BayWa r.e. is excluded unless it is a violation of a cardinal obligation in the legal sense. The liability exclusion / limitation stipulated herein also applies to damages due to default or delay.
2) Except for intent, the liability of BayWa r.e. does not cover damages which could not be typically expected during the concrete business transaction or against which the BP is insured or can ordinarily be insured. Liability for subsequent damages due to defects is excluded in all cases of only slight negligence and for the remainder in the legally permitted scope also for gross negligence.
3) All defect claims against BayWa r.e. are statute barred with the expiry of one year from delivery, taking into account the provisions in section VIII, unless BayWa re.e. has granted in individual cases other (longer) limitation periods or these apply due to binding statutory regulations.
XV. GUARANTEE OF RETENTION OF TITLE
1) All physical service or delivery objects (products/goods) remain the property (retained title) of BayWa r.e. until all claims due to it have been met, including actual claims becoming due at a later date or conditional claims. This also applies if payments are made for specifically designated claims. In the case of continuous invoicing, the retained title acts as security against its claim for the balance.
2) BayWa r.e. may at any time prohibit the sale and/or the combination and/or mixing of the retained title object(s) if the customer is in default with his payment obligations and/or has payment difficulties or becomes insolvent.
3) In case of mixing, processing and/or combining the retained title object(s) with other movable objects not belonging to BayWa r.e., it has ownership of the new object in the ratio of the invoice value of the retained title object to the invoice value of the other or new object including the expenses for processing (combination, mixing). If the invoice value of the other object is not known, its value must be calculated based on the principles of reasonableness.
4) The adaptation and processing of the retained title object takes place on behalf of BayWa r.e. as the manufacturer within the meaning of section 950 BGB without putting it under obligation. The processed object is deemed to be the retained title object within the meaning of these terms. If the contractual object is processed together with other items not belonging to BayWa r.e., it acquires a co-ownership of the new object in the ratio of the value of the purchased object (invoice amount including value added tax) to the other processed objects at the time of processing. For the remainder, the same applies to the object being produced through processing as for the purchased object delivered subject to a retention of title.
5) If the BP is a trader who resells objects without or after processing, he is entitled to sell the retained title object during his normal course of business. He now already assigns to BayWa r.e. his claims from the resale to the amount of the invoice value of the retained title object. The resale authorisation is subject to the validity of the assignment of claims. This applies analogous also for the case in which the retained title object is used by the BP to fulfil a work contract or contract for work and materials, in particular for construction firms; here too the claim from the work contract or contract for work and materials is assigned to BayWa r.e. in advance to the amount of the invoice value of the retained title object. The authorisation to process its object is subject to the validity of the assignment of claims.
6) The BP is not entitled to transfer the retained title object to third parties as security, to pledge it or to use it for swap transactions. Nor is he permitted to assign the claims ceded to BayWa r.e. on the basis of the extended retention of title as factoring client to a factoring bank, unless the factoring bank directly enters into the payment obligations of the consumer with BayWa r.e. For the remainder, the assignment or sale of the claims ceded on the basis of the extended retention of title to the factoring bank requires the written approval of BayWa r.e.
7) If debtors (third party debtors) pay the claims ceded to BayWa r.e. on account of the extended retention of title by cheque or other payment surrogate to the BP, the property or ownership to it passes to BayWa r.e. as soon as the BP has acquired it.
8) BayWa r.e. is entitled to collect claims from resale up to a revocation to which it is entitled at any time and which may also be issued orally. Upon request, the BP must inform the third party debtor of the assignment and inform it about this notification and send with this notification the necessary information and documentation for the collection of the assigned claims. BayWa r.e. must be informed by the BP without delay about any attachment or other impediment by third parties.
9) The assertion of the retention of title, in particular the recall of contractual objects, the collection of claims from third parties, does not constitute a withdrawal from the contract. In particular, BayWa r.e. is entitled to take back the retained title object - without having to withdraw from the contract - if the buyer of the retained title object has exceeded the payment target granted to him or not settled other obligations in relation to it on time or is in default or does not meet his obligations under these terms and conditions.
10) If the BP includes his claims from a resale of such materials in which BayWa r.e. has a simple, extended or prolonged retention of title in a current account relationship, he hereby assigns the current account claim to it to the amount of the value of the retained title goods. After completed balance payment, this is replaced by the accepted balance which is considered to have been assigned up to the mount representing the original current account claim.
11) The BP also assigns to BayWa r.e. in security of its claim those claims against a third party which arise from the combination of the purchased object subject to retention of title with a land plot to the amount of the invoice value of the purchased object.
12) BayWa r.e. commits to release the securities it is entitled to upon the request of the BP insofar as the actual value of its securities exceeds the claims to be secured by more than 10%; the securities to be released shall be selected at its discretion.
XVI. WITHDRAWAL RIGHT
In addition to the cases governed by section VIII clause 4 and 5, BayWa r.e. is entitled to withdraw from the contract without notice if the BP is in default with his payment obligations from the business transaction or any other business transactions with BayWa r.e. This does not affect any additional compensation claims by BayWa r.e.
XVII. PLACE OF FULFILMENT
The place of fulfilment for all deliveries and performances of BayWa r.e. is the registered office of BayWa r.e.
XVIII. PLACE OF JURISDICTION
The place of jurisdiction for all disputes based on a business transaction between BayWa r.e. and the BP is the registered office of BayWa r.e. if the BP is a trader or a legal person under public law or a public law special fund. This also applies to disputes from legal debt relationships resulting from the business transaction between BayWa r.e. and the BP. However, BayWa r.e. is also entitled to sue the BP at his ordinary place of jurisdiction.
XIX. SEVERABILITY CLAUSE
If one (or several) provision(s) of this set of terms is or becomes invalid, the validity of the remaining provisions remains unaffected. In place of the invalid provision, the relevant statutory provisions apply unless they have been legally excluded by the remaining provisions.
XX. GERMAN LAW
The legal relationship between BayWa r.e. and the BP is governed exclusively by the Law of the Federal Republic of Germany with the exclusion of the UN Convention on the Sale of Goods.
Last updated: February 2017