General Sales Conditions (General Terms and Conditions) Solar Direkt GmbH Solar Direct Vertriebs GmbH Solar Direct Produkt GmbH for commercial business Last amended: March 2010 1 Scope of application (1) The present Sales Conditions apply exclusively to companies, to legal entities under German public law or to special funds as defined under German public law within the meaning of 310 Paragraph 1 German Civil Code (BGB). Conflicting conditions or provisions divergent from those provisions stated in our Sales Conditions shall only be recognised by us in the event that we have expressly confirmed such a scope of application in writing. (2) The present Sales Conditions shall also apply to all future transactions with the ordering party insofar as such transactions are of a related nature legally. 2 Offer and conclusion of contract Insofar as an order may be viewed as an offer pursuant to 145 German Civil Code (BGB), we may accept such an order within two weeks. 3 Documentation supplied We reserve proprietary rights and copyright in all documents supplied to the ordering party in connection with the placement of the order such as calculations, drawings etc. Such documentation may not be made accessible to third parties insofar as we have not provided the ordering party with our express written approval in this regard. Such documentation shall be returned to us without delay insofar as we have not accepted the offer of the ordering party within the deadline stated in 2 above. 4 Prices and payment (1) Insofar as nothing to the contrary has been agreed in writing, our prices shall apply ex-works not including packaging and not including value added tax at the relevant statutory rate. Packaging costs shall be invoiced separately. (2) Payment of the purchase price shall be made only to the account stated overleaf. The deduction of a cash discount shall only be permissible in the event that a specific written agreement has been made to this effect.
(3) Insofar as nothing to the contrary has been agreed, the purchase price shall fall due for payment within 5 days of delivery. Penalty interest in the amount of 8% per annum above base rate shall be charged in the event of default of payment. This shall be without prejudice to the right to assert a higher claim for damages caused by a delay in payment. (4) Insofar as no fixed-price agreement has been made, we reserve the right to adjust prices accordingly to take account of changes to wage, material and distribution costs which occur 1 month or later after conclusion of contract. 5 Right to set off claims and right of retention The ordering party shall only have the right to set off claims if counterclaims are established in law or undisputed. The ordering party shall only be entitled to exert a right of retention to the extent that a counterclaim is based on the same contractual arrangement. 6 Delivery period (1) The commencement of the delivery period stated by us shall be dependent on timely and proper fulfilment of obligations on the part of the ordering party. We reserve the right of defence of non-performance. (2) In the event that the ordering party is in default of acceptance or in the event that the ordering party is in culpable breach of other duties to cooperate, we shall be entitled to require compensation for damages suffered as well as in respect of any additional expenses which may have been incurred. This shall be without prejudice to the right to assert further claims. Insofar as the conditions stated above apply, the risk of accidental destruction of or accidental impairment to the goods shall be transferred to the ordering party as soon as the ordering party is in default of acceptance or in default of payment. (3) This shall be without prejudice to further statutory claims and rights of the ordering party with regard to a delay in delivery. 7 Transfer of risk on dispatch If goods are dispatched to the ordering party at the ordering party s request, risk of accidental destruction of or accidental impairment to the goods shall be transferred to the ordering party when goods are dispatched and such risk shall be transferred to the ordering party no later than at the time when the goods leave the works/warehouse. This shall apply irrespective of whether dispatch of goods takes place from the place of fulfilment and irrespective of which party bears freight costs. 8 Retention of title (1) We reserve the right of retention of title in respect of goods delivered until such time as all claims arising from the delivery contract have been paid in full. This shall apply in respect of all future deliveries even in circumstances where we do not
always expressly state our right to such recourse. We shall be entitled to take goods back should the ordering party act in a manner contrary to the present Agreement. (2) Insofar as proprietary rights have not yet been transferred to the ordering party, the ordering party shall treat goods with due care. The ordering party shall in particular be obliged to take out sufficient insurance at the ordering party s own expense to cover goods to their replacement value against theft, fire damage and water damage. In the event that maintenance and inspection works need to be carried out, the ordering party shall carry out such works in a timely manner and at the ordering party s own expense. Insofar as proprietary rights have not yet been transferred to the ordering party, the ordering party shall notify us in writing without delay should the article delivered be subject to distraint or other third party attachment. Insofar as such a third party is not in a position to compensate us for costs incurred in bringing court or out-of-court action pursuant to 771 German Civil Code Procedure (ZPO), the ordering party shall be liable for any loss we may incur. (3) The ordering party shall be entitled to resell goods subject to retention of title in the normal course of business. The ordering party shall assign to us with immediate effect and to the full amount of the final invoice amount agreed (including VAT) any customer claims arising as a result of onward sale of the goods subject to retention of title. Such an assignment takes place irrespective of whether goods have been further processed prior to resale. The ordering party shall remain entitled to collect claims even after such an assignment has taken place. This shall be without prejudice to our own entitlement to collect such a claim ourselves. Notwithstanding this, we shall not collect such a claim insofar as the ordering party meets payment obligations from the proceeds received, insofar as the ordering party is not in default of payment and particularly insofar as no application has been made for the instigation of insolvency proceedings or cessation of payment has not taken place. (4) Any processing, further processing or transformation of goods by the ordering party shall always take place on our behalf and authority. In such a case, the vested right of the ordering party in the goods shall continue in respect of the transformed item. Insofar as goods are processed together with other objects not belonging to us, we shall acquire co-ownership in the new item in the ratio of the objective value of our goods compared to other objects processed at the time such processing took place. The same shall apply in the event that goods are mixed. Insofar as mixing takes place in such a way so that the item belonging to the ordering party is to be viewed as the main item, it shall be agreed that the ordering party shall transfer ownership to us proportionately and shall keep the sole ownership or co-ownership thus acquired in safe custody on our behalf. For the purpose of securing our claims against the ordering party, the ordering party shall with immediate effect assign to us any claims which the ordering party may acquire against a third party by the combination of goods subject to retention of title with real estate. We accept such an assignment with immediate effect. (5) We commit to releasing collateral due to us at the request of the ordering party insofar as the value of such collateral exceeds the value of the claims to be secured by more than 20 %.
9 Guarantee, notification of defects, recourse, manufacturer regress (1) Guarantee rights of the ordering party are subject to proper fulfilment of obligations incumbent on the ordering party to examine goods and provide notification of defects pursuant to 377 German Commercial Code (HGB). (2) Claims for defects shall lapse 12 months after delivery to ordering parties of goods supplied by us. The above provisions shall not apply insofar as longer deadlines are mandatorily prescribed by law pursuant to 438 Paragraph 1 Clause 2 German Civil Code, BGB (construction works and items for construction works), 479 Paragraph 1 BGB (recourse claims) and 634a Paragraph 1 BGB (construction defects). Our agreement is required before any goods are returned. (3) In the event that despite the exercise of all due care and attention goods delivered exhibit a defect which was already present at the time when transfer of risk took place, we shall, providing that notification of defect has been made in a timely manner, choose whether to remedy such a defect or deliver a replacement. We shall always be accorded the opportunity to provide subsequent performance within an appropriate deadline. The above provision does not affect recourse claims in any way. (4) In the event that subsequent performance fails, the ordering party may, irrespective of any claims for compensation, withdraw from the contract or reduce remuneration. Claims for defects shall not arise in the event of immaterial deviation from the agreed nature of the goods, immaterial impairment of usability, natural wear and tear or defects arising as a result of improper or negligent treatment after transfer of risk, excessive use, the use of inappropriate materials, inappropriate foundations or in respect of defects arising as the result of particular external influences not forming the object of provision within the present Agreement. In the event that repair or alteration works are carried out in an unprofessional manner by the ordering party or by third parties, no claims for defects shall exist in the case of such works and their ensuing consequences. (6) Claims of the ordering party in respect of necessary expenses for the purpose of subsequent performance, in particular transport, forwarding, work and material costs, shall be excluded insofar as such expenses increase because the goods delivered by us are shipped to a place other than the branch office of the ordering party unless such shipment is in accordance with intended use. (7) Recourse claims of the ordering party against us shall only exist to the extent that the ordering party has not made any agreements with the ordering party s customer extending beyond statutorily mandatory claims for defects. Paragraph 6 above shall further apply accordingly in respect of the scope of recourse claims of the ordering party against the deliverer.
10 Other provisions (1) The present Agreement and all legal relations between the parties shall be governed by the Law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. (2) Place of fulfilment and exclusive place of jurisdiction for all disputes arising from the present Agreement shall be the court at the location of our Registered Office insofar as nothing to the contrary is agreed in the confirmation of order. (3) In placing an order, the ordering party is aware that the principal or the principal s supplier sources components outside the EU area. For this reason, prices remain without engagement even after conclusion of contract unless a fixed-price agreement has been expressly made in writing. We therefore reserve the particular right to pass on charges in the event that decreases or increases in costs are incurred by our suppliers after the conclusion of the contract. This particularly applies in respect of decreases or increases in costs occasioned by collective wage agreements, changes to the prices of materials, currency fluctuations, customs duties, freight supplements or similar. The ordering party will be provided with relevant evidence on request. Notwithstanding this, should the changes stated above result in a price adjustment of more than 20%, each of the parties shall have the right to withdraw from the contract. No further legal consequences shall be invoked by such a withdrawal. The same shall also apply in respect of amendments to technical parameters due to non-availability of materials. In the event that the product ordered is not available at the time of delivery, we may supply a comparable product with a performance difference of plus/minus 20% compared to the originally agreed performance value. (4) All agreements made by the parties for the purpose of the execution of the present Agreement have been stipulated in writing within the present Agreement. (5) In the event that individual provisions contained within the present Agreement shall be or shall become invalid or in the event that there is a gap in provision, this shall be without prejudice to the other provisions herein contained. In such a case, the parties shall commit to replacing such an invalid provision by a legally valid provision that most closely reflects the economic purpose pursued or which fills the gap in provision.