General Sales Terms of Solunaris GmbH
1. General, definitions
1.1 The supplier is Solunaris GmbH, Industriepark Kalle-Albert, Building E232, Kasteler Strasse 45, D-65203 Wiesbaden.
1.2 The customer is the natural and legal person including its vicarious agents, who has placed an order with Solunaris.
1.3 These sales conditions apply solely to entrepreneurs, legal persons under public law or special funds under public law according to Sec. 310 Para. 1 BGB (German Civil Code). Solunaris does not accept orders from consumers according to Sec. 13 BGB (German Civil Code).
1.4 The order items are deliveries and/or services which shall be provided by Solunaris on the basis of the order.
1.5 These purchase conditions shall exclusively apply to all contracts between the customer and Solunaris unless agreed otherwise in writing. These purchase conditions shall also apply to all future contracts, even if not agreed upon expressly. Contrasting or diverging conditions of the customer from these sales conditions shall not be recognized, even where there is an acceptance of an order or an unconditional delivery of the order item.
1.6 There are no verbal agreements.
2. Materialization of the order
2.1 Any offers by Solunaris are nonbinding, unless otherwise expressed in the order confirmation. Solunaris reserves the right to correct mistakes and errors. Customer is obliged to point out any obvious errors (e.g. typing or calculation errors) and incompletion of the order for the purpose of correction. Otherwise, a contract won’t be concluded.
2.2 Illustrations, drawings, computations and other documents accompanying the offer are only within usual tolerances unless explicitly expressed otherwise by Solunaris. Solunaris reserves the right to its proprietary right and copyright in illustrations, drawings computations and other documents accompanying the offer. Access must not be allowed to third parties without the express written agreement of Solunaris. These materials should expressly be used for production on the basis of the order; after the order has been processed they shall be returned immediately. They shall be kept confidential from third parties even after the contract has been terminated. The obligation to secrecy shall only lapse if and provided that the information contained in the delivered documents became generally known.
2.3 Customer shall be held responsible that the planning documents do not infringe any proprietary rights of third parties. Customer shall exempt Solunaris from all claims of third parties due to violations of proprietary rights.
2.4 Contracts will be concluded by confirmation of the Customer’s offer contained in the Customer’s order by Solunaris. Solunaris will only consider offers in writing, by facsimile or electronically by E-Mail. Solunaris shall confirm acceptance of the offer within 2 weeks after receipt. Customer shall be bound to its offer for that period.
2.5 All additions, alterations or side-agreements require Solunaris’ confirmation in writing or by facsimile. The same applies to oral agreements exceeding the written agreement.
3. Conditions of payment
3.1 Unless agreed otherwise in the confirmation, prices are quoted ex works without ancillary services of Solunaris (e.g. assembly, installation), without additional costs (e.g. correct packaging, transport costs including any transport and third party insurance), without without any applicable tariffs, taxes and statutory VAT. Value added tax at the applicable rate will be shown separately in the invoice.
3.2 A discount shall only be permissible in case of a special written agreement between Solunaris and the customer. The purchase price is due and payable net (without deduction) immediately upon receipt of the invoice, unless otherwise agreed upon. A payment shall only be considered made when Solunaris can dispose of the amount.
3.3 In case of a suspension of payment or an application for insolvency proceedings, the total outstanding amount of Solunaris shall be due immediately.
3.4 Customer owes interest from the date of the maturity of Solunaris’ claims of 5% per year. Solunaris is entitled to further interest and damages in case of default.
3.5 The customer shall only be entitled to withhold payments or refuse services if the counterclaim is undisputed and regarded as legally effective.
4. Delivery terms
4.1 Delivery terms or deadlines not expressly agreed upon as binding are exclusively nonbinding.
4.2 In case insolvency proceedings are opened on the customer’s assets or in case an application for insolvency proceedings has been filed with the court in charge, Solunaris shall have the right to withdraw from the purchasing contract.
4.3 Solunaris shall at any time be entitled to partial deliveries and performance provided this is reasonable to the customer.
4.4 In case the customer is in default of acceptance, Solunaris shall be entitled to demand compensation for any resulting damages including any possible extra expenditure. The same applies if the customer culpably infringes cooperation obligations. The risk of unintentional deterioration or unintentional destruction is transferred to the customer as of the default of acceptance or default of the debtor.
5. Passing of risks, shipping, packaging
5.1 Place of performance for all contractual duties shall be Wiesbaden, unless agreed otherwise.
5.2 The choice of mode of dispatch and packaging shall be at the discretion of Solunaris. Loading and shipping shall always be made at the customer’s own risk (uninsured) and cost, unless otherwise agreed upon. Solunaris will try to take the buyer’s demands and interest into consideration as they regard the mode and route of transport; any extra expenses — also in case of freightpaid delivery — are at the customer’s expense.
5.3 Risk of accidental destruction and accidental deterioration of goods passes to the customer as soon as Solunaris has handed the goods over to the forwarder, carrier or any other third party specified to carry out the shipment. The same applies in case of partial shipments or ancillary services by Solunaris (e.g. shipping or installation). In case the shipment is delayed upon the customer’s request or fault, the risk passes to the customer on the day of Solunaris’ notification of readiness for dispatch to the customer.
5.4 Transport packing and any other packaging as covered by the German packing regulations will not be taken back by Solunaris (except pallets). The customer is obliged to dispose of the packaging at his own expense.
5.5 In case the shipment is delayed upon the customer’s request or fault, Solunaris shall store the goods at the customer’s cost and risk. Storage cost is 0.25% of the invoice total per week elapsed. Both parties are reserved the right to claim or prove further or lower storage costs.
5.6 Solunaris shall conclude a transport insurance upon the buyer’s request and costs.
6. Defects and liability
6.1 Claims for defects of the customer shall only apply in case the customer has fulfilled his obligations for inspection and notice of defects according to sec. 377 HGB (German Commercial Code). Notice of defects is only immediate and prompt if it reaches Solunaris within two days after detection.
6.2 The quality of the goods is exclusively based on the product description, unless otherwise agreed upon. Any relevant, identified use of the goods according to the European chemicals directive REACH neither implies an agreement with respect to the quality of the goods nor a use according to the contract.
6.3 The characteristics of samples and probes shall only be binding insofar as they have been explicitly agreed to define the quality of the goods.
6.4 Descriptions of material and durability as well as any other information shall only be considered as guarantees if expressly stated and agreed as such.
6.5 The customer shall be obliged to store the goods in accordance with the instructions on the safety data sheet. Deficiencies caused by negligent, incorrect storage are excluded from the warranty.
6.6 In case of justified quality complaints the customer shall have the right to subsequent performance. In this case, Solunaris either eliminates the defect by a subsequent delivery (delivery of new goods) or rework (elimination of the defect) at its choice. The customer shall grant Solunaris an appropriate period of time for a supplementary performance. In case of the elimination of defects Solunaris shall bear the respective expenses, as far as the costs will not be higher, because the place of the goods differs from the place of performance. In case the supplementary performance has failed, the customer shall either be entitled to request a reduction of the purchasing price (reduction) or to withdraw from the contract. The supplementary performance shall be regarded as failed with the second futile attempt, unless further attempts are appropriate and acceptable to the customer due to the goods. The customer shall only assert claims for damages under the following conditions in case the subsequent performance has failed. The customer’s right to assert further claims for damages under the following conditions shall remain unaffected.
6.7 Deviating to Sec. 438 Para. 1 No. 3 Civil Code, the general statute of limitations period is 1 year from the passing of risks. This limitation shall not be applicable to damages arising from injury to life, body or health, which can be attributed to a gross, intentional negligence or malice of the supplier or in case a warranty was assumed by Solunaris for the quality of the goods or in case claims under the Product Liability Act are concerned.
6.8 Liability for damages to legal interests other than life, body or health is excluded as far as the damage has not been caused intentionally or by gross negligence of Solunaris, a legal representative, an agent or assistant and in case the behavior does not constitute a violation of essential auxiliary contract duties. This exclusion of liability shall not be applicable in case claims under the Product Liability Act are concerned.
6.9 Solunaris shall not be liable in case of impossibility or delay of the fulfillment of the delivery commitments in case the impossibility or delay was caused, upon the customer’s request, by the due compliance with the obligations under the European chemicals directive REACH.
6.10 Further claims for damages are excluded, in particular the compensation for indirect damages and damages caused by force majeure, i.e. unforeseeable, inevitable events.
7. Proprietary Rights
7.1 Solunaris shall be held responsible in accordance with this section, that the ordered items do not infringe any proprietary rights of third parties within Germany. Each party will notify the other party immediately in case it becomes subject to an assertion of claims based on such infringements.
7.2 In case of an infringement of proprietary rights of third parties, Solunaris will at its choice either modify or replace the ordered item at its cost in a way, that ceases the infringement but not the accordance with the contractual provisions or will supply the customer with the right to use by concluding a license agreement. If Solunaris does not succeed with its obligations under Sec. 7.2 within an acceptable period of time, the customer may either revoke the contract or reduce the purchase price to an acceptable extent. Possible claims for damage are subject to the limitations of Sec. 6 and 9 of these sales conditions.
7.3 In case of infringement by goods supplied to Solunaris by third parties, Solunaris will, at its discretion, either assert customer’s rights against the third party at the account of the customer or assign its claims against the third party to the customer. Solunaris is only liable in case legal proceedings against the third party were unsuccessful or do not have any reasonable chance, for instance in case of insolvency of the third party.
8. Reservation of ownership
8.1 The delivered goods shall remain the property of Solunaris until the entire purchase price has been paid.
8.2 The customer shall be obliged to immediately inform Solunaris in case of any seizure or other acts of intervention by third parties.
8.3 The customer is entitled to resell the purchased goods in the ordinary course of business, but already now assigns all the claims to the extent of the final invoice amount (including VAT) which he is entitled to from resale against his customers or third parties, regardless of whether the purchased goods were resold without reprocessing.
8.4 The customer shall remain entitled to effect collection of this claim even after the assignment. Solunaris reserves the right to collect the claim themselves. However, Solunaris agrees not to collect the claim as long as the customer fulfils his payment obligations, is not delinquent in payment, no application for settlement and insolvency proceedings has been made and payments have not been suspended. If this is the case, however, Solunaris shall be entitled to demand that the customer makes his assigned claims and debtors public, report all necessary information for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
8.5 Solunaris is obliged to release any securities to which Solunaris is entitled insofar as the realizable value of such securities exceeds the value of Solunaris’ claims by more than 10%, whereby the choice of securities to be released shall lie with Solunaris.
9. Statute of limitations
9.1 Mutual claims of the contracting parties shall be statute-barred according to the statutory regulations, unless otherwise determined below.
9.2 Deviating to Sec. 438 Para. 1 No. 3 Civil Code, the general statute of limitations period for warranty claims is 1 year from the passing of risks according to Sec. 6.7 of these sales conditions.
9.3 The statute of limitations period of the sale of goods including the aforementioned extension shall apply – within the law – to all contractual warranty claims. In case Solunaris is entitled to extra-contractual compensatory claims, the regular statutory statute of limitations shall apply (Sec. 195, 199 Civil Code), unless the application of the statute of limitations period of the sale of goods does not imply a longer statute of limitations period in the particular case.
10. Supplementary provisions
10.1 In case the customer is entrepreneur, legal person under public law or special fund under public law according to Sec. 310 Para. 1 BGB (German Civil Code), place of performance and of jurisdiction shall be Wiesbaden. This shall be the exclusive place of jurisdiction.
10.2 Solunaris may assign the rights and obligations under the contract to third parties without the customer’s consent.
10.3 The customer has to announce a transfer of its place of business immediately in writing.
10.4 Solunaris shall be entitled to indicate the buyer as a reference client. This also includes press re-leases.
10.5 The invalidity or unenforceability of any provision or part of a provision of the contract shall not affect the validity of the entire contract.
10.6 The contract shall be construed and be subject of laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Additionally, the Incoterms 2020 of the International Chamber of Commerce, Paris do apply.
10.7 In case of deviations of these Sales Terms from the German text, the conditions of the German text shall prevail.
December 2020