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GENERAL TERMS AND CONDITIONS (AGB) blue GROUP GMBH
(valid since 01 January 2006)
1. General
1.1. For all deliveries the below mentioned general terms and conditions of the "Blue Group” apply. Conflicting and not corresponding circumstances of the buyer are not confirmed, except we confirmed this in written form explicitly. Our general terms and conditions apply even in that case, if we execute delivery to the buyer in knowledge of the constructional conditions in his general terms and conditions.
1.2. All agreements, which are negotiated between us and the buyer in respect of reali- sation of a contract, are stipulated in written form in this contract.
2. Offer and Completion
2.1. The signed order from the buyer is a binding offer. We are entitled to accept the offer within 14 days by sending an order confirmation or by sending the buyer the ordered goods within this period. Other forms to accept the offer on our part are not applicable.
2.2. Our offer is subject to change unless otherwise agreed in the order confirmation.
2.3. In case of cancelling the order through the buyer after receipt of our order confir- mation, the buyer has to pay a compensation of 10 % of the buying price without any deductions, unless the buyer proves that no damage in response to the value of the compensation or no damage at all appears.
3. Prices and terms of payment
3.1. Provided it is otherwise mentioned in the order confirmation, generally our prices are ex works Burghausen excluding packing and transport insurance. For goods, which do not have a list price, the today`s price of the dispatch day is valid.
3.2. We reserve the right to change our prices appropriate, in case that after signing the contract cost reductions or cost increases appear. Particular due to increase of raw material (metal) or due to labor agreements. On demand, we can prove this to the buyer.
3.3. For invoicing of the system according to Flash list (measuring protocol) the entire system price is calculated after delivery of the modules. Subject to the calculated overall performance, deductions or subsequent billing can be necessary.
3.4. The applicable VAT is not included in our prices; this is shown separately on our invoices in the legal height.
3.5. The deduction of cash discount needs written agreement.
3.6. Provided it is not otherwise mentioned, the net buying price is due for payment immediately without any deductions. The regulations by law concerning late payment apply.
3.7. The set off rights are only valid, if the counterclaim is legal binding, undisputed or accepted from our side. The buyer is only entitled to use the right to retain if the counter claim is from the same contract.
3.8. Drafts and cheques if agreed are only accepted on account of performance. The appearing costs have to be carried by the buyer.
4. Delivery
4.1. The dispatch is ex works Burghausen. If the transport is done through a forwarder, the goods are insured. Dispatches through Post, DPD etc their standard insurances apply. We do not take back any transport packing or general packing, except palettes. The buyer is bound to take care of the disposal of the same at his own expense.
4.2. To announce the date of dispatch it is requested, that all technical details are clari- fied. To facilitate compliance with our delivery commitment the buyer has to fulfill all his commitments in time and in due form. We reserve the defense of non performance of the contract.
4.3. In case that the delivery is delayed through a circumstance which is not in our responsibility, an appropriate extension of the delivery time has to be granted. Force majeure, labor disputes, riots, official sanctions, fail of deliveries through our supplier and other unforeseeable, unavoidable and exceptional events release us from our duties for the period of interference.
4.4. Is the buyer in default of acceptance or if he fails in his obligation to co-operate, we are entitled to ask for compensation of the resulting costs including appearing additional costs. We reserve the right for extensive claims.
4.5. In compliance with the requirements of point 4.4 the risk of an accidental perishing or an accidental debasement of the goods is transferred to the buyer at that point in time, where the buyer is in default of acceptance or in default of the debtor.
5. Reservation of proprietary rights
5.1. We keep the right of proprietary on the goods until we received full payment from all existing business relationships with the buyer. The proviso relates to all accepted balances. In case of contrary behavior to contract of the buyer, especially in delay of payment, we are entitled after setting an adequate period, to take back the goods. In withdrawal of the goods through us is no cancellation of the contract. We are entitled after withdrawal of the goods to liquidate the same. The proceeds of the sale have to be deducted from the debts of the buyer minus adequate costs of liquidation.
5.2. In case of garnishment or other interferences of third parties the buyer has to inform us in written form immediately to enable us to file suit according to § 771 ZPO. If the third party is not in the position to refund the judicially and exceptional costs according to § 771 ZPO, the buyer is responsible for the loss occurred.
5.3. The buyer is entitled to sell the goods in a prudent course of business. Neverthe- less he assign the claim already now to us in the height of the invoice end amount including the VAT. This is payable out of the money, which he gets paid for selling the goods to third parties independent from the matter, if the goods are sold after proces- sing. The buyer is entitled to collect his claim even after the assign of the claim. Our authority to collect the claim ourselves is hereof unaffected. We commit our self not to collect the claim, as long as the buyer complies with his payment obligations out of the amount to be collected, not having a delay of payment and in particular no application for an opening of an insolvency proceeding or in the case of cessation of payment. Is this the case, we can ask the buyer to inform us about the assigned claims and the debtors. He has to provide us with all the relevant data’s has to hand over the appro- priate documentation and he has to inform the debtor (third party) about the assignation.
6. Liability for defects
6.1. The rights set forth under statutory regulations of the buyer require the fact that the buyer has fulfilled his obligation of analysis and complain according to § 377 HGB.
6.2. Warranty claims prescribe after 12 months after handover to the buyer of the deli- vered goods. Preceding clause is not valid if the law according to § 438, paragraph 1 No. 2 BGB (construction and matters for constructions), § 479 paragraph 1 BGB (contribution claim) and § 634 a paragraph 1 BGB (defects or deficiencies in construction) dictates coercive longer terms. Prior to sending back the goods the buyer has to ask us for our acceptance.
6.3. Should the delivered goods have faults, which existed already at the time of the transfer of perils, we will, subject to notice of defect in due time, mend or deliver substitute according to our choice. We always have to have the opportunity for supplementary performance according to the law within an adequate time period.
6.4. Should the supplementary performance fail the buyer is entitled according to his own choice, to ask for withdrawal or contraction. The buyer is not entitled to claim for substitute for vain contraction.
6.5. Warranty claims do not exist with negligible variation of the appointed condition, with negligible impairment of serviceability, with natural wear or attrition as well as with damages which appeared after the transfer of perils as a result of detective or careless handling, exceeding duty, improper equipment, imperfect building work, improper foundation, or due to particular external influences, which are not assumed in the contract. We are not liable for the bearing capacity of the subsurface, on which the solar modules are installed. The buyer is responsible that the roof structure and the construction of the subsurface, on which the solar modules are installed, are sustain- able and appropriate for the designated solar modules. The necessary data’s according to DIN 1055 for the calculation of the sustainability will be provided through us on request. We are not liable for defects due to inaccurate specifications of the buyer. The installation of the system has to be carried out by a qualified company. We are not liable for the results of an inappropriate installation. If the maintenance is done in an inappropriate way through the buyer or third parties or modifications were made, the buyer is not entitled to warranty claims for the resulting outcome of the maintenance.
6.6. Claims of the buyer for the object of required expenditure of supplementary performance, in particular Transport, transport expenses, labor expenses and material costs are excluded, as far as the disbursement increase, unless the goods were transported to a different place as the place of fulfillment.
6.7. We are liable according to the legal requirements, as far as the buyer is claiming for indemnity, which are based on intent or gross carelessness. Unless we can`t be accused of purposely breach of contract, the liability of damages is restricted to the predictable typically caused damage.
6.8. We keep with the legal regulation, unless we infringe culpably an essential contractual obligation. In this case the liability of damages is restricted to the typically caused damage.
6.9. The liability for culpably invasion of Life, the body or the health is untouched; this is also valid for the compulsive liability according to the product liability act.
6.10. If not projecting otherwise arranged, the liability – without consideration to the legal nature of the claim – is excluded. This is to be considered especially for indemnity claims resulting from obligations at conclusion of the contract, because of other breach of duties and or tort claims on Substitute of damage of property according to § 823 BGB.
7. Transfer of perils at delivery
If the goods are delivered according to the request of the customer to the same, the peril of accidental perishing or accidental deterioration is transferred to the buyer with dispatch of the goods, latest when leaving the stock in Burghausen. This is autonomous thereof if the dispatch of the goods is from the place of fulfillment or who bears the freight costs.
8. Surrender of documentation
8.1. For all in connection of the contract award disposed documentation to the customer as for example calculations, drawings, etc. we reserve the title and copy rights. It is not allowed to gain access for that documentation to third parties, except we give our permission to the buyer in written form.
8.2. In case, that we deliver according to drawings, models or samples or using supplied parts by the customer, it is his responsibility to take care that industrial property rights of third parties are not violated. The buyer shall indemnify us and hold free and harmless from third party claims and he has to make the reimbursement.
9. Court of jurisdiction and applicable law
9.1. In case that the buyer is a merchandiser, our business location is the court of jurisdiction; nevertheless we are entitled to bring an action against the buyer at the court of customer’s residence.
9.2. This contract and the whole privities of contract of the parties are subject to the justice of the Federal Republic of Germany to the exclusion of United Nations Convention on Contracts for the International Sales of Goods (CISG).
9.3. Changes or additions to this contract, as well as possible supplementary stipula- tions - especially to this written form requirement - are valid only in written form. Oral subsidiary agreements were not agreed.
9.4. In case that single terms of this contract are effect less or are becoming effect less or contain a loophole, all the rest of the terms remain unaffected. Both parties commit themselves, to make a lawful acceptable regulation instead of the effect less term, which comes closest to the effect less term or which fills the loophole. In case of misunderstanding or incorrect interpretation of the translation of these company rules and regulations from German into English, then the German version prevails.
blue Group GmbH
Gewerbepark Lindach A2, 84489 Burghausen
Amtsgericht Traunstein HRB No. 17003
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