GTCS
General Terms and Conditions of Sale (GTCS) of SEN Solare Energiesysteme Nord Vertriebsgesellschaft mbH, Grasberg
Contents
§ 1 General provisions, scope of application, formal requirements
§ 2 Conclusion of Contract
§ 3 Subject matter of the contract
§ 4 Responsibilities and Duties of Cooperation of the Client
§ 5 Prices
§ 6 Security and Payment
§ 7 Delivery/Collection
§ 8 Delivery period/reservation of self-delivery
§ 9 Non-acceptance/cancellation/liability of the customer
§ 10 Change of performance
§ 11 Retention of title
§ 12 Warranty for Defects
§ 13 Return of defect-free goods
§ 14 Compensation for Damages
§ 15 Statute of Limitations
§ 16 Delivery abroad
§ 17 Place of Performance, Jurisdiction and Applicable Law
§ 18 Written form
§ 19 Severability Clause
§ 1 General Provisions, Scope, Formal Requirements
1) These General Terms and Conditions of Sale (hereinafter referred to as "GTCS") apply to all deliveries and services of SEN Solare Energiesysteme Nord Vertriebsgesellschaft mbH, Grasberg (hereinafter referred to as "SEN") to entrepreneurs in the sense of § 14 BGB (German Civil Code). These GCS also apply to orders in our online shop.
2) The validity of these GTC also extends to all future transactions with the customer, even if we do not expressly refer to the validity of these GTC again.
3) We do not recognise the general terms and conditions of business of our customers (hereinafter referred to as the "Customer"), even if we do not expressly object to them or if we perform the service for the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from our GTC. The customer's terms and conditions of purchase shall only apply if SEN expressly confirms their validity in writing.
4) These GCS apply not only to purchase contracts but also to other deliveries and services provided by SEN, including consulting services.
5) Individual agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) take precedence over our GTCS. Such agreements must be made or confirmed in writing for evidentiary purposes. Subject to proof to the contrary, the contract or our written confirmation shall be authoritative for the conclusion and content of such agreements. With the exception of managing directors, authorised signatories and authorised agents, our employees are not entitled to make agreements that deviate from our GTC.
6) Legally relevant declarations and notifications by the customer (e.g. setting of deadlines, notification of defects, withdrawal or reduction) are only effective if they are made in text or written form (e.g. letter, e-mail, fax). Insofar as these GTC require compliance with the written form for unilateral declarations, compliance with the text form shall also be sufficient. 7) In addition, the assembly instructions and data sheets must be taken into account, which can be found at any time on the Internet at www.sen.de or can be requested from the address below.
8) References to the applicability of statutory provisions are for clarification purposes only. In addition to our GTCS, the statutory provisions shall also apply without any reference to this, unless they are directly amended or expressly excluded in our GTCS.
§ 2 Conclusion of contract
1) We deliver exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code). We do not sell to consumers.
2) Product presentations in our online shop and in catalogues, cost estimates, price and delivery information and other "offers" by SEN do not constitute offers in the legal sense, but are to be understood as an invitation to the customer to submit an offer. Contract offers by SEN require the written or text form. If our offer is exceptionally to be understood as an offer in the legal sense, we are entitled to revoke our offer until receipt of the customer's declaration of acceptance (exclusion of binding pursuant to § 145 Hs. 2 BGB). This also applies if an acceptance period is specified in the offer. We shall only be bound by our offer if the offer expressly refers to the binding nature of the offer and specifies a binding period. Our offer expires if it is not accepted within the acceptance period. If no acceptance period is specified, the offer can be accepted by the customer within 14 days from the date of the offer. The receipt of the declaration of acceptance by us shall be decisive. In the event of timely acceptance by the customer, the contract shall be concluded upon receipt by us of the customer's acceptance.
3) Orders placed by the customer are binding. We can accept orders from the customer within an acceptance period of two weeks after receipt by us, unless a different acceptance period is specified in the customer's order.
4) SEN reserves the property rights and copyrights to illustrations, drawings, calculations, software and animations. They may not be made accessible to third parties without the express written consent of SEN and must be returned to us immediately upon request.
5) Special provisions and information for orders in our online shop: Orders are only possible after registration and admission of the customer to orders in the online shop. We reserve the right to refuse registration requests from customers. The customer is obliged to provide complete and truthful information when registering, to provide appropriate proof at our request and to correct the data if it changes. When ordering via our online shop, the customer makes a binding offer to conclude a contract for the goods in the shopping basket when he clicks the "Send order" button. After placing an order in the online shop, the customer receives an automatically generated confirmation of receipt. This does not constitute acceptance of the contract. The contract is only concluded when we confirm the customer's order in writing or inform the customer about the dispatch of the goods or deliver the goods. We are entitled to accept orders placed by the customer in the online shop within three working days. If the customer makes an online enquiry via our online shop, this does not constitute a contract offer by the customer, but a non-binding request by the customer for a contract offer by SEN. The ordering process in the online shop comprises the following steps: After logging in with his registration data, the customer can place the goods in a virtual shopping basket without obligation, specifying the respective number of items. The customer can view the contents of the shopping basket at any time by clicking on the shopping basket symbol and change the quantity of the products. Before placing an order, the customer has the possibility to check all details in an order overview and to correct input errors by returning to the shopping basket via the corresponding browser fields or the shopping basket symbol. We store the text of the contract. The customer can view, print out and save these GCS as part of the order process. The customer can save and/or print out the content of the order or reservation immediately after placing the order. Furthermore, we will send the customer the content of the order and the GTC in force at the time of the order after the order has been placed. A later inspection of the order history is possible under the heading "My Account". It is not possible to view the version of the GCS valid at the time of the order there. The contract language is German.
§ 3 Subject matter of the contract
1) The scope of delivery and service is determined by the last contract concluded between SEN and the customer.
2) The owed quality of the goods is to be taken from the manufacturer's product description. SEN shall ensure that the assembly instructions are free of defects.
3) SEN only assumes legally binding consulting services after separate agreement against separate remuneration. In particular, SEN does not assume any consulting service with the offer of the planning software SOLDraft. The software only offers planning support for the customer. SEN provides this software without warranty and assumes no responsibility for the calculated results and/or the suitability of the planned installation for the target object. The use of the planning tool is at the Customer's own risk and does not release the planner from the technical inspection for compliance with the local conditions. In particular, the calculated material quantities, statically relevant specifications and suitability of the proposed products (especially inverters) must be checked.
§ 4 Responsibilities and duties to cooperate of the customer
1) The customer himself is responsible for the suitability for his intended purpose, the required quantities, compliance with the structural and static requirements as well as the generator arrangement and design and must check the offer in this respect.
2) The use of the planning tool SOLDraft is at the Customer's own risk. SEN does not assume any liability for the results (cf. § 3 para. 3).
§ 5 Prices
1) Our prices do not include value added tax, packaging, freight, insurance and other additional costs. The prices are Euro prices unless otherwise stated.
2) Price and performance specifications as well as other declarations are only binding for SEN if they have been submitted or confirmed by it in writing.
3) The agreed prices only apply to the respective agreed order.
4) The prices for our delivery are based on the circumstances existing at the time of the conclusion of the contract. If, after conclusion of the contract, there are unforeseeable cost increases for SEN which cannot be influenced by SEN, e.g. due to increases in freight rates, transport costs, taxes, customs duties or other public charges, increases for raw materials and supplies or currency fluctuations, we are entitled to adjust the prices at our reasonable discretion. If the price increase exceeds 15% of the original price, the customer may reject the price increase. In this case we are entitled to withdraw from the contract.
§ 6 Security and payment
1) We are entitled at any time, also within the framework of an ongoing business relationship, to conclude a contract only against advance payment, down payment or provision of security. If it becomes apparent after the conclusion of the contract (e.g. through an application for the opening of insolvency proceedings, default with other performance obligations, negative creditworthiness information) that our claim to the purchase price is jeopardised by the customer's lack of ability or willingness to perform, we shall be entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract. § Section 321 of the German Civil Code (BGB) shall apply (mutatis mutandis). Special agreements (including special discounts) are invalid in this case.
2) If we offer customers payment on account, this is subject to a successful credit check by our credit insurer.
3) In the case of payment by invoice, invoicing shall regularly take place on the day of handover to the forwarding agent, the freight person or the customer or, in the case of collection by the customer, on the day of declaration of readiness for collection. If the customer is in default of acceptance, the invoice shall be issued on the day of default of acceptance. Our claims are due for payment immediately without deduction. The customer shall be in default if the respective claim amount is not paid by the agreed payment date. If no date has been determined, the customer shall be in default if the invoice amount is not paid within 14 days after receipt of the invoice. The date of receipt of the payment by us shall be decisive. An earlier occurrence of default in accordance with the statutory provisions, in particular by means of a reminder, shall remain unaffected.
4) During the period of default, the customer shall be obliged to pay default interest and lump-sum damages in accordance with the statutory provisions as minimum damages. We reserve the right to claim higher damages. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) remains unaffected.
5) Further rights, in particular the right to withdraw from the contract in accordance with the statutory provisions and/or to claim damages, shall remain unaffected.
6) The customer shall only be entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or have been recognised by us. In the event of defects in the goods, the customer's counter rights shall remain unaffected, in particular in accordance with § 12 of these GCS. Cheques and - if expressly agreed - bills of exchange are accepted on account of performance; discount and collection charges as well as interest are to be reimbursed to SEN immediately in this case.
§ 7 Delivery/Collection
1) Unless otherwise agreed, delivery shall be ex warehouse (EXW Incoterms 2020). The goods must be collected immediately after notification that they are ready for collection. If the customer does not collect the goods, SEN is also entitled - in addition to the legal and contractual rights and claims to which it is otherwise entitled - to dispatch the goods to the customer at its own discretion at the expense and risk of the customer after expiry of a period of three working days to be set by it. The risk is transferred to the customer as soon as SEN has made the goods available for collection and has notified the customer of this. The customer is exclusively responsible for the transport including loading and proper transport securing at his own expense.
2) Even if we take over the dispatch of the goods for the customer, the transport is at the expense and risk of the customer, unless expressly agreed otherwise. The risk shall pass to the customer when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This also applies if partial deliveries are made, we bear the costs of the transport and/or we carry out the transport ourselves or SEN has taken over further services such as unloading following the delivery. Even if we dispatch the goods or carry out the transport ourselves, the customer is responsible for unloading at his own expense and risk, unless SEN has taken over the unloading as an additional service in accordance with an express agreement. Even if SEN takes over the unloading according to the agreement, the customer must provide a forklift as unloading aid at his own expense. The choice of the mode of dispatch and transport is made at SEN's reasonable discretion. The shipment will only be insured by SEN against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer's expense. The shipping conditions applicable to orders in our online shop will be displayed to the customer during the order process.
3) Paragraphs 1 and 2 apply accordingly if the delivery is not made to the customer but to the customer's end customer or to third parties according to the customer's instructions.
4) If our employees or other third parties working for us support the customer in loading and/or securing transport and/or unloading, without SEN having a legal obligation in this respect, this is done as a matter of courtesy and at the customer's own risk. These persons act as vicarious agents of the customer. We do not assume any responsibility in this respect. The customer shall indemnify us against all possible claims of third parties.
5) At the request of SEN, the customer agrees to partial deliveries and partial provision, insofar as this is reasonable for him.
6) SEN takes back packaging material insofar as it is legally obliged to do so.
§ 8 Delivery period/reservation of self-delivery
1) Details of delivery dates are non-binding in case of doubt, unless they have been expressly confirmed by us in writing as a binding delivery date. For orders placed via our online shop, the delivery time for goods in stock is regularly 2 - 3 working days, for advance payment 3 - 4 working days after receipt of payment. We point out deviating delivery times and delivery times for goods not in stock in the respective product offers.
2) The delivery is subject to the correct and timely delivery to SEN by the supplier or manufacturer of the ordered goods. SEN does not assume any procurement risk.
3) If we have informed the customer in an appropriate and reasonable manner of delivery bottlenecks prior to the conclusion of the contract, in particular if SEN cannot secure the delivery at the time of the conclusion of the contract through timely covering purchases, the following applies: - The agreement is made subject to deliverability. SEN will endeavour to procure the goods from the manufacturer or supplier as quickly as possible. Delivery to the customer will be made as soon as possible after receipt of the goods by SEN, whereby SEN will fulfil the orders of its customers according to the chronological order of the conclusion of the contract. SEN will inform the customer when the goods are available. - The customer is entitled to withdraw from the contract if the delivery does not take place within six weeks after the conclusion of the contract. - In the event of withdrawal, we will immediately reimburse the customer for all counter-performance. Further claims of the customer are excluded.
4) In the event that SEN commissions a forwarding agent, the delivery is on time if the goods were handed over in such a timely manner that under normal circumstances timely delivery was to be expected.
5) A prerequisite for compliance with the delivery time is the timely fulfilment of the contractual obligations assumed by the customer, in particular the making of the agreed payments and, if applicable, the provision of agreed securities as well as all necessary acts of cooperation.
6) SEN is not liable for non-deliveries or delays in delivery if these are due to force majeure or another impediment beyond our control and we could not reasonably be expected to consider the impediment or to avoid or overcome the impediment or its consequences. This applies, for example, to acts of war, terrorism, acts of nature, operational, transport and traffic disruptions, failure to deliver, strikes, lawful lockouts, official orders, mass illnesses, epidemics and pandemics, labour shortages. In such cases, we will inform the customer of the reason for the hindrance and its effects. If such an event makes it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, both parties are entitled to withdraw from the contract. In the event of hindrances of temporary duration, our delivery or service deadlines shall be extended or our delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Either party shall be entitled to withdraw from the contract if the resulting delay exceeds the period of six weeks or if, as a result of the delay, it can no longer be reasonably expected to adhere to the contract before the expiry of this period. If partial deliveries have been agreed, the rights relating to these partial deliveries shall be asserted separately. Claims for damages by the customer are excluded in these cases.
7) In the event of a delay in delivery for which we are responsible, the customer shall be entitled to set us a reasonable period of grace, which as a rule shall be at least three weeks. The customer shall only be entitled to further rights after the fruitless expiry of the grace period. If partial deliveries have been made, the customer may no longer withdraw from the entire contract or claim damages on account of these partial deliveries. We shall only be liable for damages due to delayed delivery in accordance with § 14.
§ 9 Non-acceptance/cancellation/liability of the customer
1) If the customer does not perform duties to cooperate or does not perform them in accordance with the contract, if the customer does not make an agreed call-off, if the goods are dispatched later than the scheduled delivery date at the customer's instigation or due to circumstances for which the customer is responsible, or if the customer is in default of acceptance due to other circumstances, we shall be entitled to demand compensation for the resulting damages and additional expenses. During the delay in acceptance, we are entitled to charge a lump sum for damages in the amount of 0.2% of the invoice amount for each week or part thereof, but not more than 5% of the invoice value. The customer is entitled to prove to us that no or considerably lower damages have been incurred. We reserve the right to prove higher damages. Further rights, in particular the right to withdraw from the contract or to claim damages instead of performance, shall remain unaffected. In such cases, the risk shall pass to the customer upon notification of readiness for dispatch.
2) If the customer owes damages instead of performance, we are entitled to demand lump-sum damages in the amount of 15% of the purchase price, unless the customer proves a lower damage. We reserve the right to claim higher damages in accordance with the statutory provisions.
§ 10 Change in performance
1) The performance classes of solar modules of a manufacturer are regularly subject to deviations. Instead of the agreed properties of the goods, SEN is entitled, insofar as this is not unreasonable for the customer, to deliver goods with a higher performance in whole or in part. In this case the price can be adjusted by special agreement.
2) SEN is entitled to deliver wholly or partly less powerful modules if the total output of the system ordered by the customer (for example by a substitute increase in the number of modules) does not fall below the limit of 5% of the planned yields. The price will be adjusted from a minus output of 1 %. SEN will notify the customer as soon as possible and even before delivery of the Change in performance. If the change in performance is unreasonable for the customer due to increased space requirements of the system or other weighty reasons despite the only minor deviation, the customer may object to the change in performance immediately. In this case SEN is entitled to withdraw.
3) If the manufacturer makes technical improvements or neutral changes in his serial production after conclusion of the contract, SEN is entitled to deliver the changed goods.
§ 11 Retention of title
1) The goods remain the property of SEN until the complete payment of the purchase price and all respective existing claims against the customer from the business relationship, even if they did not yet exist at the time of the respective conclusion of the contract (including balance claims from a current account relationship). The ownership of the goods as well as the claims assigned as security are automatically transferred to the customer as soon as the purchase price for the goods has been repaid and no further claims from the business relationship exist (retention of title in the form of a current account reservation).
2) The customer is only entitled and authorised to resell and further process, use or install the reserved goods in the normal course of business and only with the proviso that the claims according to paras. 2 to 4 are actually transferred to SEN and a resale of the reserved goods on credit only takes place against sufficient securities (e.g. agreement of an own reservation of title). The customer is not entitled to other disposals of the goods subject to retention of title, in particular pledging or transfer of ownership by way of security. The authorisation pursuant to sentence 1 shall automatically expire if the customer is in default of payment, the opening of insolvency proceedings against his assets has been applied for or he is obliged to apply for insolvency proceedings.
3) Any transformation or processing (hereinafter collectively referred to as "processing") of our goods still subject to retention of title (hereinafter referred to as "goods subject to retention of title") by the customer shall always be carried out for us as manufacturer within the meaning of § 950 BGB. In the event of processing, we shall directly acquire ownership of the newly created item. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (invoice value incl. VAT) to the other processed items at the time of processing. If the goods subject to retention of title are inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the customer's item is to be regarded as the main item, the customer and we agree already now that the customer transfers co-ownership of this item to us on a pro rata basis (in proportion to the value of the raw materials). We accept this transfer. The provisions for goods subject to retention of title shall apply accordingly to the products resulting from processing, mixing or combining, insofar as they are our property. The customer shall no longer be entitled to process, combine, mix or blend the goods subject to retention of title (hereinafter referred to as "processing authorisation") if he is in default of payment, if the opening of insolvency proceedings against his assets is applied for or if he is obliged to apply for insolvency proceedings against his assets.
4) The customer is obliged to treat the reserved goods with care at his own expense, to store them carefully for us and to insure them adequately against the usual risks (e.g. theft, breakage, fire, water) at replacement value and to provide evidence of the conclusion and existence of the insurance policy on request. We are entitled to insure the reserved goods at the customer's expense. We may at any time demand that the customer keeps an inventory of the goods delivered by us at his respective storage location and identifies the goods as our property. Insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods are already now assigned to us by the customer by way of security. We hereby accept this assignment.
5) The customer is entitled to sell the goods subject to retention of title, but only in the ordinary course of business and subject to the effective assignment to us of the resulting claims in accordance with the following provisions. To other The customer is not entitled to dispose of the reserved goods, e.g. to transfer ownership by way of security or to pledge them. All authorisations to dispose of goods subject to retention of title shall automatically expire if the customer is in default of payment, if insolvency proceedings are instituted against his assets or if he is obliged to file for insolvency proceedings against his assets. In the event of a resale of the reserved goods on credit, the customer is obliged to sell the goods only against sufficient collateral (e.g. agreement of his own reservation of title, etc.).
6) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of goods subject to retention of title in the amount of the invoice value of our claims (including VAT) to which we are entitled against the customer from the business relationship at the time of the resale, plus a security surcharge of 20%. The term "resale" is to be understood broadly and also includes, in particular, the delivery of the reserved goods by the customer to third parties within the framework of contracts for work and services. The term "claims" shall include all claims of the customer against its customers or third parties with regard to the reserved goods, in particular also claims in tort, claims against insurers as well as against financial institutions.
7) If the customer combines goods subject to retention of title with third-party movable objects or with a plot of land in such a way that SEN's ownership of the goods subject to retention of title expires, the customer assigns to SEN by way of security all its claims to which it is entitled against third parties in connection with the combination (for example from the contract or unjustified enrichment), namely in the amount of the invoice value of our claims (including VAT) to which we are entitled against the customer from the business relationship at the time of the resale, plus a security surcharge in the amount of 20% in the amount of the invoice value of the reserved goods plus a security surcharge in the amount of 20% in the amount of the value of the combined reserved goods. If the customer is the owner or lessor of the property, he assigns any rental claims from this property to SEN.
8) The customer is authorised to collect the claims assigned to us from the resale. The proceeds to which we are entitled are to be forwarded to us in each case immediately after receipt. Upon our request, the customer shall inform us of the names of the debtors of the assigned claim and notify them of the assignment. We are authorised to inform the customers of the assignment also on his behalf. The direct debit authorisation shall automatically expire if the customer is in default of payment, the opening of insolvency proceedings against his assets has been applied for or he is obliged to apply for insolvency proceedings.
9) Notwithstanding any automatic expiry, we shall be entitled to revoke the resale and/or processing authorisation and/or the collection authorisation if the customer breaches his obligations towards us, in particular if he fails to properly fulfil his payment obligations arising from the business relationship, in particular if he is in default of payment, or if he breaches his obligations as a conditional buyer or if it becomes apparent after the conclusion of the contract that our payment claims arising from the business relationship with the customer are jeopardised by the customer's lack of ability to pay. In the event that the collection authorisation expires, the customer shall provide us with the information on the claim required for collection and, if necessary, support us in the collection process.
10) Furthermore, in the event of conduct in breach of contract on the part of the customer, we shall be entitled to withdraw from the contract in accordance with the statutory provisions. Optionally, we are also entitled to merely demand the return of the goods, provided that the prerequisites for withdrawal are met. Such a mere demand for return does not constitute a declaration of withdrawal. However, we reserve the right to withdraw from the contract. The same shall apply if we seize the goods subject to retention of title. The customer shall bear the transport costs incurred for taking back the goods. We shall be entitled to realise any goods subject to retention of title taken back by us. The proceeds of the realisation shall be offset against the amounts owed to us by the customer after we have deducted a reasonable amount for the costs of the realisation.
11) The customer shall notify us immediately after becoming aware of any third party seizure of the goods subject to retention of title and shall provide us with all information and documents necessary for an intervention. The customer shall be liable for the costs incurred for the cancellation of the seizure, in particular by filing a third-party action, insofar as they cannot be obtained from the enforcing creditor.
12) We undertake to release securities at the customer's request if the value of our securities exceeds the claims to be secured by more than 20%. We shall be entitled to select the securities to be released.
§ 12 Warranty for defects
1) We assume warranty only for the expressly agreed product description or specification of the respective product. We point out that the illustrations, drawings, quality, quantity, weight, dimension and performance data contained in our offers and printed matter only represent approximate values. Public statements, recommendations or advertising by us or by a third party do not constitute a contractual description of the quality of the goods. As a matter of principle, we do not issue guarantees in the legal sense. A guarantee is only given if it is expressly designated as such.
2) The customer is obliged to immediately inspect the goods for defects, including deviations in quality and quantity, in all services rendered by us, including work performances, and must notify us in writing without delay if a defect becomes apparent. The inspection must in any case be carried out before the goods are installed, processed or resold. Obvious defects must be notified in writing without delay, at the latest within two working days. Defects which are recognisable during a proper inspection of the goods must be notified in writing within 10 working days of receipt of the goods at the latest. Defects which were not recognisable during a proper inspection (hidden defects) must be notified in writing within two working days of their discovery. If defects are not notified in accordance with the above provisions, the delivery shall be deemed to have been approved in accordance with the contract. Notes on delivery notes shall not be deemed to be notices of defects. Field staff, transport personnel or other third parties are not entitled to receive notices of defects.
3) The burden of proof for the existence of a defect lies with the customer.
4) In the event of proven defects, we shall, at our discretion, provide warranty by means of free rectification or subsequent delivery (supplementary performance). We are entitled to require the customer to return the defective goods to us in advance for the purpose of examining the complaint and, if necessary, for subsequent improvement or subsequent delivery. The necessary transport costs for the return of the goods shall be borne by us in the event of justified complaints. If the customer has installed the goods in another item or attached them to another item in accordance with their type and their contractual purpose, we are entitled within the scope of subsequent performance to undertake the removal of the defective item and the renewed installation of the defect-free item ourselves or to leave the removal and installation to the customer. In the latter case, we shall reimburse the customer for the necessary expenses. The customer shall set us a reasonable period of time within which we can carry out the removal of the goods on our own responsibility. Our right to refuse subsequent performance due to disproportionate costs remains unaffected. Subsequent performance shall in any case be disproportionate if the costs of subsequent performance amount to more than 120 % of the purchase price.
5) The customer may only withdraw from the contract or reduce the purchase price if no attempt at subsequent performance is made within a reasonable period set by us or if subsequent performance is impossible, refused, failed or unreasonable. The period for subsequent performance must be at least four weeks, provided that no justified interests of the customer are opposed. In case of doubt, a failure of the supplementary performance shall only be assumed after the third failed attempt of supplementary performance. The customer shall not be entitled to withdraw from the contract due to insignificant defects. For rights of withdrawal and claims for damages due to defects, the special provisions in § 14 shall apply in addition to the statutory requirements.
6) In the event of defects, the customer may withhold payments only to an extent that is reasonable in relation to the defects that have occurred.
7) No warranty shall apply in the event of defects due to unauthorised intervention or faulty conduct on the part of the customer, for example if the customer stores, handles or uses the item incorrectly, unless the customer proves that the defect is not due to his conduct.
8) Recourse pursuant to §§ 445a, 445b BGB is excluded if the end customer is an entrepreneur. If the end customer is a consumer, §§ 445a, 445b, 478 BGB shall apply with the following provisos: The customer must inform SEN as immediately as possible about a warranty case occurring with a consumer. The customer must give us the opportunity to carry out the subsequent delivery or rectification vis-à-vis the customer's customer before subsequent performance vis-à-vis his customer. The customer cannot demand compensation for expenses which it has incurred without a legal obligation towards its customer. The same applies if these expenses have been incurred on the basis of an obligation that goes beyond the legal warranty claims and rights. Claims from supplier recourse are excluded in any case if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product or inseparable connection with another product.
9) Section 15 shall apply to the limitation of claims for defects.
10) If our performance is a work performance, the customer shall be entitled to demand subsequent performance in accordance with the statutory provisions. The above provisions shall apply mutatis mutandis to the assertion of further rights, including the right to substitute performance, the obligation to give notice of obvious, recognisable and identified defects and the limitation provisions.
11) Insofar as the manufacturer has given guarantees or promises, SEN is not directly obliged from this, but the manufacturer is to be held liable.
§ 13 Return of defect-free goods
We point out that the customer is not entitled to the return of goods delivered correctly and free of defects. SEN will only take back such goods if SEN has agreed to the return in advance in the respective individual case. In this case, SEN will charge a return fee in the amount of 5% of the net value of the goods, but at least in the amount of 250 euros, unless expressly agreed otherwise. The transport costs shall be borne by the customer. Returned goods will only be accepted if they are in their original packaging, undamaged and unused. The return of special articles and custom-made products is excluded in any case.
§ 14 Compensation
1) The statutory provisions apply to the right to withdraw from the contract with the proviso that the customer can only withdraw due to a breach of duty not consisting of a defect insofar as we are responsible for the breach of duty.
)SEN's obligation to pay damages is limited as follows: - We shall only be liable, provided that the other claim prerequisites are met, if we are guilty of intent or gross negligence. - We shall only be liable for simple negligence in the event of a breach of an obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may regularly rely (so-called cardinal obligation). In all other respects, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, is excluded. - Insofar as we are liable for negligent conduct, our liability shall be limited to the damage that we could typically expect to occur under the circumstances known at the time of conclusion of the contract.
3) For damage caused by delay, SEN is liable to a maximum of 5% of the value of the service in default. The claim for damages does not extend to consequential damages such as lost feed-in tariffs, interest expenses and the costs of replacement power purchases.
4) The above exclusions and limitations of liability shall not apply insofar as we have assumed a guarantee, for damages which are to be compensated according to the Product Liability Act, as well as for damages to life, body or health.
5) The above exclusions and limitations of liability shall also apply in favour of our employees, vicarious agents and other third parties whom we use for the performance of the contract.
§ 15 Limitation of actions
1) The limitation period for claims based on defects is 12 months, unless longer periods are prescribed by law in accordance with §§ 438 para. 1 no. 2 (buildings and items for buildings), § 445a, 445b (right of recourse) and § 634a para. 1 no. 2 (building defects) BGB.
2) Other contractual claims of the customer due to breaches of duty are also subject to a limitation period of 12 months. This does not apply to the customer's right to withdraw from the contract due to a breach of duty for which we are responsible and which is not due to a defect.
3) By way of derogation, the statutory limitation periods shall apply to claims for damages arising from product liability, for damages arising from injury to life, limb, health or a material contractual obligation, as well as for other damages based on an intentional or grossly negligent breach of duty by us or our vicarious agents as well as for claims due to fraudulent concealment of a defect.
4) Our claims against the customer shall become time-barred in accordance with the statutory provisions.
§ 16 Foreign delivery
Additional costs caused by a foreign delivery, such as customs duties, consular fees, expenses for the preparation of export documents and costs arising from foreign packaging regulations, shall be borne by the customer.
§ 17 Place of performance, place of jurisdiction and applicable law
1) Place of performance is the registered office of SEN.
2) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is agreed to be the registered office of SEN in Grasberg. The same applies to customers who do not have a general place of jurisdiction in Germany or customers who have moved their domicile or usual place of residence outside of Germany after conclusion of the contract or whose domicile or usual place of residence is not known at the time of the filing of the action. SEN is also entitled to sue the customer at his general place of jurisdiction.
3) The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
§ 18 Written form
Subsidiary agreements and amendments to the contract must be in writing in order to be effective.
§ 19 Severability clause
Should individual provisions of the contract including these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision. The same applies to unintentional loopholes.
SEN Solar Energy Systems Nort
Vertriebsgesellschaft mbH
Grasberg Wörpedorfer Ring 46 28879 Grasberg
Tel. 04208/9169-0 Fax 04208/9169-50
E-Mail: info@sen.de
web: www.sen.de
Status: January 2023