GENERAL BUSINESS TERMS
1. SCOPE OF APPLICATION
The following provisions govern the contractual relationship with respect to the sale of photovoltaic modules and other goods (collectively hereinafter referred to as “Goods”) between HANWHA Q CELLS GMBH (hereinafter referred to as “Q CELLS”) and contractors, i.e. natural or legal persons or partnerships with legal capacity with whom / which Q CELLS enters into business relationships and who / which act in the exercise of commercial or self-employed activity (hereinafter referred to as “Buyer”). Any other conditions of the Buyer are hereby declared non-applicable. Exceptions may be made upon written confirmation of Q CELLS. Upon conclusion of the contract, the Buyer shall accept these terms and conditions. These terms and conditions shall only apply towards entrepreneurs within the meaning of § 310 paragraph 1 of the BGB [German Civil Code].
2. CONCLUSION OF THE CONTRACTS
a) Offers of contract of Q CELLS are non-binding. On placing an order, the Buyer makes a binding offer.The contract does not come into existence until the order is confirmed or the Goods are delivered by Q CELLS. Q CELLS’ order confirmation shall be exclusively decisive for the extent of the services to be provided.
b) Unless otherwise expressly agreed upon in writing, e.g. in the technical product description or data sheets, information regarding the properties and characteristics of the Goods are for illustrative purposes and not binding. Likewise, public statements, recommendations or advertisements do not constitute a contractual statement of the nature of the Goods. Minor deviations from details regarding dimensions, weight, nature or quality shall remain reserved.
c) Q CELLS reserves any property and intellectual property rights pertaining to its figures, drawings, calculations and other documents, also in electronic form. This provision shall apply in particular for those documents classified as “confidential”. Prior to forwarding them to third parties, the Buyer must obtain the express written confirmation of Q CELLS.
d) Q CELLS reserves the right to make changes even after sending the order confirmation, provided that these changes do not contradict the order confirmation or the specifications of the Buyer. The Buyer shall accept any further changes suggested by Q CELLS as far as these can be reasonably expected of him.
3. PRICES AND TERMS OF PAYMENT
a)Unless otherwise expressly agreed with Q CELLS in writing: Prices are ex-works and exclusive of statutory sales tax at the applicable rate as well as the relevant costs of carriage. The Buyer must pay 100 % of the agreed purchase price, including all additional costs, cash in advance. Whereas the Buyer has performed a payment in time only in case that the amount to be paid has been duly credited to the account of Q CELLS before the end of the payment term. If the Buyer defaults in payment, Q CELLS shall be entitled to charge default interest at the statutory rate. If Q CELLS can demonstrate that the level of damage caused by default is higher, it shall be entitled to assert this higher claim.
b) In case of contracts with agreed delivery periods of more than three months, Q CELLS reserves the right to adjust prices in line with any cost increases occurred after conclusion of the contract due to additional labour costs, transportation and storage costs, the introduction or change of taxes or material price increases. However, such an increase in price is only permissible if the agreed price is not increased by more than 5 %.
c) If payment by instalments is agreed, the entire residual debt – regardless of the maturity of any bills of exchange – shall become due for payment immediately, if the Buyer falls into arrears, partly or completely, with the payment of at least two consecutive instalments and if the amount with which the Buyer is in default is at least a tenth of the agreed purchase price.
d) The Buyer is only entitled to set-off rights and rights of retention if his counterclaims have been established as final and absolute, are undisputed or have been acknowledged by Q CELLS.
a) Delivery dates and periods shall be agreed in writing between the Buyer and Q CELLS for each order. The delivery periods shall start upon conclusion of the contract, unless otherwise agreed with Q CELLS. If changes to the contract are agreed in writing subsequently, it may also be necessary to agree upon a new delivery date or period.
b) Compliance with the agreed delivery periods requires the timely and proper fulfilment of obligations on the part of the Buyer.
c) In case that the Buyer is in delay with any payment obligation or in case that he violates any other essential contractual obligation, Q CELLS reserves the right to terminate the respective delivery or deliveries.
d) If Q CELLS is in default of delivery of Goods, liability shall be limited to 0.5 % of the invoice amount (excluding VAT) of the deliveries affected by the default for every full week of delay, however, to a maximum amount of 5 % of the invoice value of the deliveries affected by the default. This penalty is the only legal remedy of the Buyer with respect to this default.
e) Deliveries must be accepted if they show only negligible defects.
f) Partial deliveries are permissible as far as these can be reasonably expected of the Buyer.
g) Should the Buyer get into default of acceptance, Q CELLS shall be entitled to claim compensation for the loss incurred; upon the occurrence of default of acceptance, the risk of accidental loss or accidental deterioration of the Goods shall pass to the Buyer.
5. TRANSFER OF RISK
a) The risk passes to the Buyer when the goods are dispatched or collected.
b) The Buyer is obliged to accept the Goods delivered by Q CELLS at the moment of handover.
c) The delivery shall be EXW (Incoterms 2010), unless something different has been agreed explicitly.
d) Q CELLS is not liable for any delays of delivery caused by the transport of the Goods.
6. RETENTION OF TITLE
a) The Goods shall remain property of Q CELLS until all claims (including all current account balance claims) to which Q CELLS is entitled now or in future for whichever legal reason are fulfilled. Processing or modification shall always be undertaken on behalf of Q CELLS as the manufacturer, however, without any obligations for Q CELLS. In the event that Q CELLS loses property rights through combining, it is agreed that the Buyer must transfer to Q CELLS the property rights of the coherent article according to the value percentage (invoice value). The Buyer shall store the (co)property of Q CELLS at no cost. Goods to which Q CELLS is entitled as (co)owner will hereinafter be referred to as reserved Goods.
b) The Buyer is entitled to process and sell the reserved Goods in the regular course of business provided that he is not in default. Pledging or assignment as security is not admissible. The Buyer hereby assigns to Q CELLS by way of security any and all future claims (including all current account balance claims) resulting from the resale and / or from any other legal basis thereof with respect to the reserved Goods. Q CELLS hereby revocable entitles the Buyer to collect the claims assigned to Q CELLS for account of Q CELLS in its own name.
c) In the event of third-party access to the reserved Goods, the Buyer has to advise the third party of Q CELLS’ property rights and has to notify Q CELLS immediately. The Buyer shall bear any costs and damages.
d) In the event of behavior contrary to the contract on the part of the Buyer, in particular in the event of delayed payment, Q CELLS is entitled to terminate or to withdraw from the contract and to demand the return of the Goods. After taking back the Goods, Q CELLS shall be entitled to sell them and the proceeds of such sale shall be set off against the Buyer’s liabilities with deduction of reasonable sales costs.
e) Q CELLS undertakes to release, at Q CELLS’ option, the securities due to it at the Buyer’s request to the extent that the value of the securities exceeds the claims secured by more than 10 %.
7. CONTRACTUAL RIGHT OF LIEN
Based on the claim arising from the contractual relationship with the Buyer, Q CELLS is entitled to a contractual right of lien on the objects which came into Q CELLS’ possession by virtue of the contractual relationship. The contractual right of lien may also be exercised for any claims arising from works carried out previously, replacement deliveries and other services as far as they are related to the subject of the contract. For other claims against the Buyer, the contractual right of lien shall only apply as far as these claims are undisputed or established as final by a court.
a) The warranty shall be valid for a period of two years starting at the date of delivery of the Goods. In the event of a defective delivery, Q CELLS shall be obliged, at its own discretion, to either repair the damage or to deliver non-defective Goods. In the event that the defective Goods are not repaired or replaced, the Buyer shall be entitled to assert his legal warranty rights (reduction of the purchase price or withdrawal from the contract with regard to the defective Goods). The Buyer shall be obliged to return the defective Goods to Q CELLS, unless otherwise expressly instructed by Q CELLS. Q CELLS shall bear the necessary costs for such a delivery return shipping, provided that this is stipulated according to applicable mandatory laws. The returns become the property of Q CELLS, unless the parties have not agreed different or an applicable mandatory law stipulates different. Before returning any of the Goods, the Buyer shall obtain written confirmation from Q CELLS.
b) Only those properties that are listed in the technical product description or data sheets shall be considered to be agreed as nature of the Goods. Public statements, recommendations or advertisements do not include a binding description of the agreed nature of the Goods.
c) In this section, neither a “guarantee of quality” within the meaning of § 443 of the BGB nor an “assumption of a guarantee” within the meaning of § 276 of the BGB shall be given with regard to the Goods.
d) Asserting claims for defects presupposes that the Buyer has properly met his obligations in respect to inspection and defect notification pursuant to § 377 of the HGB [German Commercial Code].
e) Any further claims of the Buyer are excluded, in particular on account of consequential damage as a result of the defects, provided this does not result from the absence of guaranteed attributes.
9. FURTHER LIABILITY
a) Furthermore, any claims for damages of the Buyer, irrespective of legal basis, are excluded. This shall not apply in cases that are based on intent, gross negligence or the breach of a material contractual obligation. In case of breach of a material contractual obligation, compensation for damages shall be limited to the foreseeable, typically occurring damage. No change of burden of proof to the disadvantage of the Buyer is connected with the preceding provisions.
b) Should the Buyer sell, modify or combine the Goods delivered with other Goods, the Buyer shall, internally, exempt Q CELLS from any product liability claims of third parties, unless Q CELLS is responsible for the defect causing the liability.
c) Any changes on the Goods and any marking which could be regarded as mark of origin of the Buyer or a third party are inadmissible.
10. EXEMPTION FROM LIABILITY
The exemptions and limitations of liability listed in these terms and conditions shall not apply for
(i) damages arising from injury to life, physical injury or damage to health which are based on a intentional or negligent breach of duty of Q CELLS or an intentional or negligent breach of duty of its legal agents or its vicarious agents,
(ii) any other damages which are based on an intentional or grossly negligent breach of duty of Q CELLS or an intentional or grossly negligent breach of duty of its legal agents or its vicarious agents,
(iii) damage included in the liability according to the Product Liability Act or in cases for which guarantee has been given.
11. RIGHT OF WITHDRAWAL AND TERMINATION
a) Q CELLS shall be entitled to terminate or withdraw from the contract partially or completely if:
(i) an application has been made to open insolvency proceedings against the Buyer’s assets,
(ii) it becomes known that the Buyer has been considered as unworthy of credit at the time of conclusion of the contract,
(iii) the Buyer ceases to exist, or
(iv) in case there is any other important reason that justifies a termination or a withdrawal. Such reason would be, for example, a breach of essential contractual obligations.
b) In case of permanent supply contracts, the right of withdrawal shall be replaced by the right of extraordinary termination without notice.
12. SEVERABILITY CLAUSE, PLACE OF PERFORMANCE, PLACE OF JURISDICTION, WRITTEN FORM
a) If parts of these terms and conditions are invalid or contradict applicable law, this shall not affect the validity of the remaining provisions.
b) Bitterfeld-Wolfen shall be the place of performance and jurisdiction for Hanwha Q CELLS GmbH. These terms and conditions are governed by German law. The application of the UN Convention on Contracts for the International Sale of goods shall be excluded.
1.1 All purchase agreements, contracts for work, contracts for work and materials and service contracts between Hanwha Q CELLS GmbH - hereinafter referred to as „the Company“ - and its contractors - hereinafter referred to as „the Contractors“ - shall exclusively be governed by the following General Terms and Conditions.
1.2 Any conditions of the Contractor that are contrary or supplementary to or at variance with the present conditions shall not become part of the contract unless expressly recognised by the Company in writing.
PURCHASE AGREEMENTS, CONTRACTS FOR WORK AND CONTRACTS FOR WORK AND MATERIALS
2. DESIGN RECORDS, COPYRIGHTS AND CONFIDENTIALITY
2.1 The Contractor undertakes to treat as secret any information embodied by drawings, records, perceptions, samples, manufacturing aids, patterns, data carriers etc. left to it for its use by the Company and not to make them accessible to any third party (including subcontractors), reproduce them or use them for any purpose other than contractually agreed except with the Company‘s approval. This obligation of secrecy shall remain in force beyond the performance of the given contract.
2.2 The obligation of secrecy pursuant to sub-paragraph 2.1 shall not apply to any information that is or becomes publicly known or was already known to the Contractor unless this is or was caused by a breach of contract on the Contractor‘s part.
2.3 Ownership of and the copyrights and all other rights to any information, records and objects made available by the Company shall remain with the Company. The Contractor shall at its expense carefully keep safe, tend and insure the records and objects placed at its disposal and shall surrender them to the Company or destroy them at the latter‘s request at any time. The Contractor shall have no right of retention, no matter on what ground. Written assurance is required to the effect that such a request for return and / or destruction has been fully met.
2.4 It is only with the express written consent of the Company that the Contractor may make reference in its information or advertising materials to its business relations with the Company.
2.5 The Contractor shall be liable for any damage sustained by the Company as a result of a breach of one of the obligations referred to in subparagraphs 2.1 to 2.4.
3. CONTRACTOR‘S OFFER
3.1 In submitting an offer the Contractor shall respond precisely to the inquiry and shall expressly draw attention to any deviation from it.
3.2 In its offer the Contractor shall quote packing costs, customs clearance charges and customs duties separately.
3.3 Where the Contractor has reservations about the type of design ordered, it shall promptly so notify the Company in writing.
3.4 The Contractor shall submit its offers and cost estimates free of charge.
4. PLACING OF ORDERS BY THE COMPANY
4.1 The Company shall place and modify its orders in writing. The substance of orders or modified orders placed orally or by telephone shall not be binding unless promptly confirmed by the Company in writing.
4.2 Any order or modified order of the Company shall be confirmed by the Contractor in writing, indicating the full voucher number, the transaction number and the order date.
4.3 The obligation to take back packaging shall be governed by the pertinent statutory provisions.
5. DELIVERY, DELIVERY DATES, DELAY IN DELIVERY
5.1 The Contractor shall notify the Company of any licensing or registration requirements associated with the import and / or operation of the items delivered by it.
5.2 The Contractor shall select the modes of transport that are most convenient to the Company. If the transport charges are borne by the Company, the Contractor shall select the most favourable from among the most convenient modes of transport.
5.3 If, notwithstanding paragraph 6, the risk passes to the Company before hand-over or formal acceptance, or if the Company, notwithstanding sub-paragraph 8.4, has already made a down payment, the Contractor shall be obligated to insure the delivery items at its own expense against the usual transport risks.
5.4 Consignments shall be accompanied by a delivery note, indicating the full voucher number, the transaction number and the order date.
5.5 Agreed delivery dates are binding. The decisive criterion for the timeliness of a delivery shall be its receipt by the Company or by the consignee named by it.
5.6 As soon as the Contractor realises that it is unable to fulfil its contractual obligations in whole or in part or on time, it shall promptly so notify the Company in writing, stating the reasons for and the expected duration of the delay.
5.7 In case of a delay in delivery the Company shall be entitled to flat-rate damages on account of default at a rate of 1 % of the value of the goods for each full week, at most, however, 10 % of the full contract value of the given consignment. The Company reserves the right to assert damages in excess of the above. The Contractor may prove to the Company that the delay has entailed a substantially lower loss or no loss at all.
5.8 Where all or part of the contractual performances are rejected on or after hand-over or formal acceptance, the Contractor shall be obligated to promptly collect the given consignment / partial consignment at its expense. The Company may, upon expiry of a reasonable collection period, return the consignment / partial consignment to the Contractor at the latter‘s expense.
6. PLACE OF PERFORMANCE AND PASSING OF THE RISK
6.1 The place of performance in respect of all of the Contractor‘s deliveries and services shall be the consignee named by the Company. The risk shall not pass until hand-over and / or formal acceptance of the performance. Where deliveries include installation or assembly works, the risk shall pass on the day of successful formal acceptance or, to the extent agreed, following a trouble-free trial run.
6.2 Where a consignment or service is rejected on or after hand-over or formal acceptance as being at variance with the contract, the risk shall not pass to the Company until a consignment or service is handed over or formally accepted that is in conformity with the contract.
7. CONTRACTOR‘S RESERVATION OF TITLE
Only an ordinary reservation of title by the Contractor shall be recognised, not, however, an extended reservation of title nor one in respect of the current account or any other special form of such reservation.
8. PRICES, INVOICE AND PAYMENT
8.1 The agreed prices are fixed prices. They exclude supplementary claims of any kind. Price increases no matter on what ground shall be deemed recognised only after being confirmed by the Company in writing.
8.2 On invoices wording and prices must appear in the same sequence as on the or der. Invoices shall be presented to the Company following completion of the pertinent delivery / service, indicating the full order number and the transaction number. Additional or reduced performances, if any, shall be listed separately in invoices. Improperly presented invoices shall not be deemed received by the Company until after corrected.
8.3 Where the procurement of certificates or the performance of materials tests have been agreed or become necessary, they shall be deemed an integral part of the delivery and shall be submitted to the Company along with the invoice.
8.4 Unless agreed otherwise, payment shall be made by the means customary in the industry within 14 days at a discount of 2 % or after 30 days with no discount. The term of payment begins to run from the agreed point in time, not, however, before receipt of a proper invoice. If the invoice is received prior to completion of the delivery or service, the term of payment begins upon receipt of the delivery or service as contracted for, at the earliest.
9.1 The Contractor shall see to it that it is aware on time of all data and circumstances relevant to the fulfilment of its contractual obligations and of the purpose for which the Company intends to use the given consignment.
9.2 The Contractor warrants that its deliveries and services encompass all elements that are required for their proper, safe and efficient use, that they are suitable for the intended purpose and that they meet the current standard of science and technology.
9.3 The Contractor warrants that the items delivered by it are clear of such defects as would impair their value or their fitness, are of the agreed or guaranteed quality and are suitable for the use envisaged by the contract. The Contractor‘s warranty shall also cover the parts manufactured by subcontractors and the services rendered by them.
9.4 If a delivery item does not satisfy the above requirements, the Company may require elimination of the defect or delivery of a faultless item, may withdrawfrom the contract pursuant to the applicable statutory provisions, reduce the purchase price or claim damages and / or compensation for futile expenses. If the Contractor has assumed a guarantee in regard to the quality or durability of a delivery item, the Company may in addition assert its claims under such guarantee.
9.5 The Company shall, after receipt and / or formal acceptance of the goods, check them to the extent that can reasonably be expected and that it is technically equipped to do so, for quality and completeness. Notices of defects shall be deemed given on time if communicated within one week by letter, fax, e-mail or telephone. The period within which a notice of defects must be submittedshall begin to run at the point in time when the Company discovers or could have been expected to discover the defect, i.e. in case of an apparent defect on taking delivery, and in case of a hidden defect on its discovery.
9.6 Warranty and guarantee claims are governed by the statute of limitations.
10. QUALITY ASSURANCE / SAFETY REQUIREMENTS
10.1 The Contractor shall be obligated, in rendering its performances, to observe all pertinent standards, laws and regulations, in particular those on environmental protection, hazardous substances, dangerous goods and accident prevention, and the generally recognised rules of safety engineering and industrial medicine.
10.2 Standards, laws and regulations within the meaning of the first paragraph, are in particular the requirements of:
• the appliance safety law (GSG)
• the 9th ordinance on the appliance safety law (9th GSGV - Machine Ordinance)
• the 4th ordinance on the appliance safety law (4th GSGV - (Engine Noise Information Ordinance)
• the Low Voltage Ordinance
• the EMV Ordinance
• the Minimum Requirements of the Ordinance on the Use of Means of Work (AMBV) and
• the underlying engineering rules pursuant to the declaration of conformity or
• the manufacturer‘s certificate in accordance with the 9th GSGV.
Technical means of work which do not qualify as machines within the meaning of the 9th GSGV must in particular satisfy the quality requirements of the valid accident prevention regulations.
10.3 If required, the Contractor shall conclude a pertinent quality assurance agreement with the Company.
10.4 For machines a declaration of conformity must be submitted, which shall relate to the entirety of the delivered machines of the same type including additional equipment. All machines must visibly bear a CE sign.
10.5 Part of any delivery shall be operating instructions pursuant to Q CELLS‘ procedural rules as last amended for „Equipment manuals and documentation“ complete with safety hints for operation and maintenance, and the required specifications and planning records. The operating instructions must include a risk appraisal pursuant to § 5 ArbSchG (Safety at Work Law) which must inform the operator of the necessary protective measures.
10.6 The above obligations form part of the contract. If they are disregarded, the given contract shall be deemed improperly performed, in which case the Company may, among other things, claim damages under the product liability law.
11. PROPERTY RIGHTS
11.1 The Contractor shall be liable to the effect that the supply and use of the items delivered does not infringe patents, licences or other thirdparty property rights and it shall indemnify the Company from any potential third-party claims. Such indemnification by the Contractor shall cover all expenses incurred and losses sustained by the Company as a result or in the context of any recourse to it by a third party.
11.2 Potential licence fees shall be borne by the Contractor.
12. SAFETY INSTRUCTIONS
12.1 The Contractor is obligated to observe Hanwha Q CELLS GmbH general safety regulations when delivering goods to the Company‘s premises or performing other works there.
12.2 When interfering with existing systems involving hazardous substances, Q CELLS‘ procedural rules as last amended on „Works on systems involving hazardous substances“ shall be observed.
13. DATA PROTECTION
The Company may, in accordance with the Federal Data Protection Law, store and evaluate all required personal and factual data. There will be no separate notification by the Company. The Contractor undertakes to deal with data relating to the Company‘s undertaking in accordance with the Federal Data Protection Law.
14. VENUE, APPLICABLE LAW
14.1 All legal relations arising between the Company and the Contractor or its legal successors shall be governed by the law of the Federal Republic of Germany. Application of the rules on the international sale of goods (CISG) and of German international private law is expressly excluded.
14.2 If the Contractor is a businessman within the meaning of the Commercial Code, exclusive venue shall be Bitterfeld- Wolfen unless a different venue is mandatory pursuant to § 40 para. 2 ZPO (Code of Civil Procedure).
15. CLAUSES APPLICABLE TO SERVICE CONTRACTS
Paragraphs 2, 3, 4, 5.5, 5.7, 8, 12, 13, 14 and 15 applicable to purchase contracts, contracts for work and contracts for work and materials shall analogously apply to contracts for services. Otherwise, contracts for services shall be governed by the pertinent statutory provisions.
16. CONTINUED VALIDITY IN CASE OF PARTIAL NULLITY
16. Continued validity in case of partial nullity Should any provision of these terms and conditions be void no matter on what ground, the validity of the remaining provisions shall not be affected thereby.