Terms and Conditions for Supply and Services
1. Applicability and Scope
The following terms and conditions shall apply for all present and future supplies and services provided by Solarkiosk Solutions GmbH (hereinafter: SKS) to the Buyer, including but not limited to supply of goods, trading and installations, repair work, spare part sales and other services (hereinafter: Object of Agreement).
Changes and amendments of these Terms and Conditions for Supply and Services require a written confirmation. General terms and conditions of the Buyer shall only apply if SKS has explicitly agreed to such Buyer conditions in writing.
These Terms and Conditions for Supply and Services shall apply notwithstanding any Buyer’s condition deviating from or contradicting to these Conditions – if SKS has executed deliveries without any reservation.
2. Conclusion of Contract, Quotation and Related Documents
SKS’s quotation is non-binding. The presentation of SKS products and services in brochures, catalogues, flyers, reference drawing as well as indications with respect to weight, measures and the like are only approximately applicable.
If SKS has submitted a quotation and the related order has not been placed, documents related to such quotation shall be returned to SKS immediately on SKS’s request.
The mutually signed contract or the SKS’s written order confirmation by SKS set the terms of the contract and bring the contract into effect even if the written order confirmation is not consistent with the declarations of the Buyer in every respect, especially with reference to the exclusive application of these Terms and Conditions for Supply and Services.
If the Buyer does not agree to the order confirmation, he shall contest the order in writing within a short time, at the latest seven calendar days after receipt of the written order confirmation by the Buyer.
3. Buyer’s Obligation to Cooperate
Approvals and other verification or approval certificates requested by third parties, which are required for the import, installation and operation of the Object of Agreement, shall be procured by the Buyer in due time and at his own expense.
Any cost, incurred due to a directive by a third party requesting to provide services and materials exceeding the scope of supply as stipulated by the contract respectively the order confirmation, shall be completely borne by the Buyer.
The Buyer is obliged to submit SKS immediately and free of charge all information required SKS to fulfill his contractual obligations. This includes, but is not limited to: (if required)
a) Exact definition of required material;
b) layout plan for installation and indication of the required position of the Object of Agreement;
c) operating instructions and regulations as well as executive instructions;
d) safety regulations and standards.
Documentation as mentioned under a.), c.) and d.) of this paragraph shall be provided to SKS prior to the conclusion of the contract respectively the order confirmation.
4. Payment Terms, Right to Set-Off, Taxes and Duties
Agreed upon or stipulated in the quotation.
Buyer’s payment obligation is fulfilled only if and when the invoice amount is received without reservation by SKS at his free disposal. Unless agreed otherwise this is given when the respective amount is credited to SKS’s bank account.
SKS is entitled to set off its claims against payment claims the Buyer has towards the SKS.
The Buyer may set off only those claims which are undisputed or legally binding.
All taxes, duties, expenses or/and other charges incurred outside Germany shall be borne by the Buyer.
If any sales tax, consumption tax or similar taxes are raised in connection with the sale of the Object of Agreement and SKS is charged with such taxes, SKS shall be entitled to increase the agreed price accordingly.
In case of deterioration of Buyer’s financial circumstances after conclusion of the contract, SKS is entitled to refuse performance until any claim has been settled or if otherwise securities have been provided to safeguard outstanding payments.
Exchange rates might change at any time
5. Retention of Title, Right of Use, Transfer of Risk
SKS retains the title to the Object of Agreement until the final and irrevocable receipt of all payments.
SKS reserves all intellectual property rights and copyrights to illustrations, drawings, cost estimates and other documents relating to quotations. Any such material shall only be made available to third parties with prior written consent from SKS.
The Buyer is granted a non-exclusive and non-transferable right of use to programs and related documentation, including subsequent amendments to such programs and documentation, which are delivered with and required for making the stipulated use of the goods delivered by SKS. Any reproduction of such program or documentation, apart from a back-up copy, is not permitted. Without prior written consent from SKS, any such material must not be transferred or otherwise made directly or indirectly available to third parties by the Buyer.
Unless otherwise stipulated, the risk of the Object of Agreement shifts to the Buyer Ex Works (Incoterms 2010) even when partial deliveries are made or if the SKS has undertaken to provide other services, i.e. delivery, forwarding expenses, installation, commissioning, training etc.
6. Delivery Time
All delivery and performance dates (hereinafter Delivery Time) require a written agreement between SKS and the Buyer. The Delivery time stated in the quotation may change until the date of conclusion of the contract, based on SKS’s production capacities.
Delivery Time starts with the latest date set forth below:
a) conclusion of the contract;
b) SKS’s receipt of documentation as described under E.3 a,c and d
c) SKS’s receipt of the contractually agreed down-payment.
Adherence to the Delivery Time is dependent on Buyer’s compliance with regard to payment terms as well as fulfillment of Buyer’s obligation to cooperate and perform as well as the issuance of export permits, if necessary.
If the delivery is delayed due to act or omission of the Buyer, an extension of the Delivery Time in a reasonable proportion to the circumstances shall be granted. This shall also apply, if the cause of such delay occurs after expiry of the Delivery Period stipulated in the contract.
If the Delivery Time is not met for reasons beyond SKS’s control, like e.g. industrial disputes, shortage of materials or power supplies or Act of God, the Delivery Time shall be extended by the period required to remedy the cause of delay plus an appropriate grace period.
If a fixed Delivery Time has been agreed upon in the contract and SKS fails to deliver within such fixed Delivery time (or any extension thereof granted in accordance with the present article), the Buyer – after a grace period of four weeks – is entitled to claim a compensation for such delay for each full week thereof amounting to a half percent of the value of the part of the Object of Agreement being delivered late. In no event the cumulative compensation shall exceed a total of five percent of the value of the Object of Agreement; however, such entitlement shall not apply, if it can be reasonably concluded from the circumstances of the particular case that the Buyer has suffered no damage.
Any enforcement of a claim for compensation shall explicitly exclude, subject to the provisions as stipulated under E.9 c), any other liability of SKS for delay of Delivery Time.
7. Test Run, Final Acceptance, Accuracy and Performance Data
The SKS reserves the right to make changes in design, which do not affect the purpose of the contract.
The warranty period generally is stated on the quotation and finally confirmed on the order confirmation.
The SKS warrants the equipment covered to be free from defective material and workmanship.
If the Buyer notifies within the warranty period that there are parts found to be defective due to defects resulting from design, manufacturing, processing or erection, SKS is obliged at his discretion to repair or replace such parts within a reasonable period of time.
In case SKS does not fulfill this obligation, the Buyer may ask for appropriate reduction of the contract price.
However, if a mutual agreement about the reduction cannot be reached, the Buyer can ask at a maximum for rescission of the contract. The Buyer, at his own risk and expense, is responsible for transportation of defective parts, repaired parts or spare parts between domicile and works of SKS.
This warranty does not include defective parts, materials or equipment manufactured by or on behalf of the Buyer.
SKS’s warranty obligations shall only apply to defects that appear under the applicable contractual operation and regular use.
This warranty does not cover defects in or damage to the products which are due to improper maintenance or operation, modifications without the prior written approval by SKS, badly implemented repairs by the Buyer or a third party and normal wear and tear.
SKS’s warranty obligations do not cover traveling cost incurred by service interventions during the warranty period.
From date of transfer of risk, the SKS shall not accept any liability that exceeds the scope stated in the present article.
9. Limitation of Liability
It is expressly agreed, that notwithstanding any contrary provisions in this contract the liability of SKS towards the Buyer is to the following extend:
a) to the extent of the contractual agreed liquidated damages;
b) within the frame of contractual agreed insurances of SKS.
c) Regardless of the legal theory under which any claim may be pursued and as far as not covered by any insurances of SKS, SKS in no event shall be liable for damages not occurring on the equipment itself and especially SKS shall not be liable for indirect, special, incidental or consequential damages, including but not limited to loss of profits or revenue, loss of use of equipment, cost of capital, cost of substitute equipment etc. The limitation of SKS’s liability shall not apply in case of willful intent or gross negligence of the organs of SKS or his executive employees responsible for the execution of the contract, culpable injury to life, body or health, defects concealed maliciously by the organs of SKS or his executive employees responsible for the execution of the contract or in case of product liability.
d) The Object of Agreement has to meet the contractual specifications.
In case the Object of Agreement does not meet the contractual specification or SKS does not fulfill his contractual obligations SKS is obliged at his choice to repair or replace or to fulfill his contractual obligations within a reasonable time.
e) Where the Buyer pleads non-fulfillment of contract, the Buyer is obliged to do everything possible to minimize the incurred loss provided this does not entail unreasonable cost or disadvantages.
Otherwise, in case of Buyer’s failure to meet this obligation, the SKS is entitled to a reduction of compensation.
10. General Terms and Conditions
As for the rest, outside of Germany the “GENERAL CONDITIONS for the SUPPLY AND ERECTION OF MECHANICAL, ELECTRICAL AND ELECTRONIC PRODUCTS shall apply, unless otherwise stipulated in these Terms and Conditions for Supply and Services.
b) Supply of safety fences, safety doors, bumper rails etc. as perSKS’s engineering;
c) Basic training of operation and maintenance staff and implementation of internal instructions prior to the commissioning of the machine/plant according to SKS’s documentation.
11. Final Provisions
The law of the Federal Republic of Germany shall apply.
The exclusive court of jurisdiction for all demands arising from or inconnection with this contract is Berlin, Germany.
If provisions of these Terms and Conditions for Supply and Services should be or become partly or wholly ineffective, the remaining arrangements will continue to apply. The parties are bound to replace the ineffective provision with a legally valid provision, as close as possible to the commercial meaning and purpose of the ineffective provision.