§ 1 Scope
The supplies, services and offers of our company (hereinafter called PAIRAN) are provided exclusively on the basis of these General Terms and Conditions.
Therefore, they shall also apply to all future businesses, even if they are not explicitly agreed on again. General Terms and Conditions of the customer shall only apply as far as they have been explicitly agreed on in writing.
The General Terms and Conditions of PAIRAN can be accessed and printed via the websites at „www.pairan-elektronik.de“ or „www.pesos-solar.com”.
§ 2 Offer and Conclusion of the Contract
The offers of PAIRAN are non-binding. A contract will only be concluded at the time of the receipt of a written order-confirmation by PAIRAN.
The conclusion of the contract is subject to the proviso that the suppliers of PAIRAN perform correctly and timely. As far as the performance is impossible for PAIRAN or delayed due to a circumstance that the supplier is responsible for, PAIRAN will inform the customer accordingly without undue delay. In that case any performance by the customer will be reimbursed immediately.
The claim for damages by the customer is excluded in such a case, unless PAIRAN is responsible for the delay due to intention or gross negligence. A statement issued by the supplier shall suffice as proof that PAIRAN was prevented from its performance without default.
§ 3 Period of Delivery and Performance
Agreements on delivery dates and periods have to be made in writing. There is only a fixed date if it has been explicitly confirmed in writing by PAIRAN.
Even if there is an agreement on a fixed delivery period or date it is necessary for the beginning of the default that the customer sets a reasonable time limit for the performance of PAIRAN in writing. After the limit has expired unsuccessfully the customer may rescind the performance or part-performance that was not announced ready for delivery at the time of the expiration of the time limit.
As far as PAIRAN is responsible for the non-compliance of any agreed dates and periods or if it is in delay, the compensation is limited to a half percent of the invoice value (excluding VAT) of the deliveries or performances affected by the delay for every completed week, however, in total a maximum of five percent of the invoice value of the deliveries or performances affected by the delay applies. Any and all further claims shall be excluded, unless the delay is caused by gross negligence attributable to PAIRAN.
PAIRAN is entitled to carry out part deliveries and part performances at any time, unless the partial delivery or partial performance is unreasonable for the customer. The compliance with the delivery and performance obligation of PAIRAN is subject to the correct and punctual compliance of the customer with his duties.
In the event that the customer is in delay of acceptance, PAIRAN is entitled to claim damages; beginning with the delay in acceptance the risk of accidental deterioration or accidental loss passes to the customer.
§ 4 Prices, Breach of Duty and Changes to the Economic Means of the Customer
The prices are net prices plus the applicable value added taxes.
The prices do not include the costs for packing, freight, customs duties and other taxes and public charges, which will be charged separately. The prices are ex warehouse in Göttingen or if delivered directly, ex warehouse of the supplier.
PAIRAN reserves the right to modify its prices accordingly if cost reductions or increases occur after the conclusion of the contract, in particular, due to labor agreements and changes of prices for material. PAIRAN will provide proof of the price modification at the customer’s request.
The reduction of cash discount must be separately agreed on in writing.
The customer is not entitled to exercise a right of retention based on counter-claims including those resulting from defects or to set-off. This does not apply to claims of the customer that are uncontested or acknowledged by PAIRAN or if the counter-claims are legally established as final and absolute by court. Furthermore, the customer is entitled to exercise a right of retention only as far as the counter-claim is based on the same contractual relationship.
If the customer is in delay with his payment, PAIRAN may claim interest in the amount of 8 percentage points p.a. above the base interest rate beginning at the due date in accordance with §§ 288, 247 BGB [German Civil Code]. The right to further damages due to the delay is retained.
If PAIRAN is released from the duty to perform due to the culpable non-acceptance of the deliveries and/or performances of PAIRAN by the customer, PAIRAN may request lump-sum damages from the customer in the amount of 5% of the net contract value. The customer is free to prove that damages have not occurred at all or that they are significantly lower than the lump-sum damage.
PAIRAN has the right to call the outstanding obligation of the entire business due if it receives notice of circumstances that question the creditworthiness of the customer, especially if he hands over a check to PAIRAN that is not cashed by the bank, if he suspends payments or if he files for insolvency or makes a declaration in lieu of oath as to his financial circumstances.
In such a case PAIRAN may make further deliveries conditional upon the reciprocal payment.
Excluding §§ 366, 367 BGB, PAIRAN shall determine which claims are settled by the customer’s payment. In the event that costs and interest have already been incurred, PAIRAN shall be entitled to clear outstanding costs first, then interest and finally the principal performance.
§ 5 Reservation of Title
The title to the goods is reserved by PAIRAN (retained goods) until all obligations of the customer resulting from the business relationship have been fulfilled. As far as the value which can be released from PAIRAN’s securities exceeds the claims to be secured by more than 10%, PAIRAN will release the corresponding securities at the request of the customer at PAIRAN’s choice and discretion.
For the duration of the retention of title, the customer may not pledge the retained goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the customer receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
If the customer resells the retained goods, he already now assigns to PAIRAN his future claims from the resale against his customers with all subsidiary rights - including any balance claims and collaterals - as security without any subsequent special declarations being required. If the retained goods are resold together with other objects without an individual price having been agreed for the retained goods, the customer assigns to PAIRAN with priority over the other claims that part of the total asking price corresponding to the price of the retained goods invoiced by PAIRAN. At preliminary proof of an entitled interest the customer has to give PAIRAN the necessary information and he has to hand over the necessary documents for the assertion of PAIRANS' rights against himself.
The customer is obliged to treat the goods carefully and to sufficiently insure the goods at their new value and at the customer's own expense against loss and damage. The customer hereby assigns his claims arising from the insurance contracts to PAIRAN. PAIRAN accepts this assignment. In the event that the goods are inseparably combined with other objects which are not owned by the customer, PAIRAN acquires the co-ownership in the new object in relation to the value of the goods to the other combined objects at the time of combining.
The customer has the revocable right to collect the assigned debts resulting from the resale. At the existence of an important reason, especially default of payment, cessation of payments, filing for insolvency proceedings, protest of a bill or legitimated indications for an excessive indebtedness or a looming insolvency PAIRAN may revoke the customer's authorization to collect the debt. After an advanced warning and within an appropriate time limit, PAIRAN is entitled to reveal the security assignment, utilize the assigned receivables as well as to demand that the customer reveals the security assignment to his own clients. The customer has to inform PAIRAN immediately in the event of the seizure of property or other interventions of third parties.
If the customer breaches the contract, especially if he is in default of payment, PAIRAN shall be entitled to withdraw from the contract and to demand return following fruitless expiry of a period of grace set for the customer; the statutory provisions concerning the waiver of a period of grace shall remain unaffected. The customer has to return the goods received.
§ 6 Defects
1. The Customer’s Duty to examine
The customer is obliged to examine the goods delivered by PAIRAN without undue delay and to notify PAIRAN in writing of possible detects without undue delay, however, at the latest within seven days after the arrival of the goods at the place of destination.
Defects that cannot be discovered despite a due examination within the aforementioned period have to be given notice of in writing immediately after their discovery, however, at the latest within seven days after their discovery. PAIRAN shall be given an opportunity to rectify the defects within a reasonable period. If a notice of defect is not sent in time, the goods are considered to be approved.
2. Removal of Defects
As far as the goods are defective PAIRAN shall be entitled to choose a posterior fulfilment either by removal of the defects or by providing a new consignment free from defects. If PAIRAN chooses to remove the defects, it is obliged to bear all expenditures necessary for the removal of the defect, in particular transport, travel, labor and materials costs, as far as these costs are not increased because the goods have to be transported to a place other than the place of performance.
If PAIRAN fails to meet his obligation to supplementary performance the customer has to set a reasonable period of grace for the supplementary performance. After the fruitless expiry of the period the customer may reduce the purchase price or withdraw from the contract. The same applies if the removal of defect by PAIRAN fails.
Claims on account of defects do not exist in case of a minor deviation from the quality agreed upon, in case of a merely minor impairment in usability, in case of natural wear and tear or damage after the passing of risk due to defective or neglected operating resources, excessive usage, unsuitable operation, defective construction works, or due to special external influences which were not presumed under the terms of the contract. The customer is not allowed to modify the goods subject of the complaint. In that case the customer loses his claims based on the defect.
Only such conditions of the goods are agreed that are included in the technical product specification and/or the contract. Public remarks and advertisements by PAIRAN about the conditions of the goods, especially in commercials, brochures or leaflets are not a binding description of the goods. Discolorations found on modules which do not affect their efficiency are not to be considered as diversions from the agreed conditions of the goods. Efficiency calculations and predictions of profit of the photovoltaic plant are generally not binding unless otherwise explicitly agreed on between PAIRAN and the customer.
4. Limitation Period
The period of limitation with respect to claims based on defects is 12 months, starting to run with the delivery of the defective goods. This shall not apply where longer periods are mandatory by law and in cases of the injury of life, body or health or for a liability based on intent or gross negligence by PAIRAN and on fraudulent concealment of a defect.
§ 7 Passing of Risk
The risk of incidental destruction or incidental worsening of the sold merchandise is passed on to the customer upon delivery. Moreover, the risk, including a risk of a sequestration by the authorities, passes to the customer as soon as the consignment is handed over to the person carrying out the transport, at the latest however, as soon as the consignment leaves the warehouse of PAIRAN. In the event that the consignment is delayed due to the customer’s behavior or if the customer is in default of acceptance, the risk shall pass to the customer starting from the time of the delay.
§ 8 Customer’s Cooperation Duties
The customer is obliged to cooperate in the required manner in order to receive the contractual performance by PAIRAN.
§ 9 Liability
Notwithstanding the aforementioned provisions and the following restrictions on liability, PAIRAN shall have unlimited liability for damages or injuries to life, body and health caused by negligence of or caused intentionally by PAIRAN, its legal representatives, vicarious agents or assistants, as well as for damages covered by the liability under the German Product Liability Act (Produkthaftungsgesetz), as well as for any damages resulting from a breach of contract caused willfully or by gross negligence or any damages resulting from fraudulent intent or in cases of the assumption of a guarantee. As far as no intentional breach of contract by PAIRAN is alleged, liability for damages is limited to the foreseeable, typical damage.
PAIRAN shall also be liable for damages caused by simple negligence as long as this negligence concerns the breach of those contractual duties which are of essential importance for the fulfillment of the purpose of the contract (cardinal duties). ln that case liability for damages is limited to the foreseeable, typical damage.
As far as PAIRAN has assumed the transportation of the goods, it is only responsible for arranging the contracts required for the services requested. In that regard, PAIRAN’S responsibility is limited to the careful choice of such third party service providers. If PAIRAN has a claim due to a case of damage against a third party that PAIRAN is not liable for, PAIRAN will assign these claims to the customer on the customer’s request.
The limitations and exclusions from liability also apply as far as the liability of legal representatives, managing employees and other assistants of PAIRAN is concerned. Any further liability is excluded without consideration of the legal nature of the claim lodged. As far as the liability of PAIRAN is excluded or limited the same applies to the personal liability if its employees, workers, vicarious agents or other assistants.
Claims for damages become statute-barred after a calendar year beginning from the delivery of the goods or the fulfillment of the performance, irrespective of the customer's knowledge of the cause of the damage and/or who caused it. The short statutory limitation period does not apply when PAIRAN can be accused of gross negligence or intention as well as in case of physical and health damage or death caused by PAIRAN.
In the absence of any provisions to the contrary above, liability of PAIRAN shall be excluded.
§ 10 Force-Majeure
In case of Force Majeure and other obstacles not caused by PAIRAN, such as interruptions of operations, strike, lock-out, governmental interventions, etc., including such events taking place at the pre-supplier or sub-contractor level, the performance times are extended by the amount of time lost due to interferences if PAIRAN is hindered from the performance of its obligation. In case that the circumstances referenced above make the delivery or the performance permanently impossible or if PAIRAN can refuse to perform its obligation due to such a circumstance (§§ 275 Sections 2 and 3 BGB), PAIRAN may withdraw from the entire contract or part of the contract concerning the part that has not been fulfilled yet. If the performance time is extended due to an aforementioned circumstance or if PAIRAN is released from its duty to perform, the customer has no rights upon which he can base claims for damages. If the hindrance lasts more than three months, the customer has the right, after granting a reasonable deadline extension, to withdraw from the contract in respect of the part not yet fulfilled. PAIRAN may only claim the aforementioned circumstances if it informed the customer of the circumstances without undue delay.
§ 11 Instructions and Product Liability
The customer is obligated to carefully observe the product instructions provided by PAIRAN, and to forward them to his customers. This applies especially for the product data sheets by PAIRAN and other written product specifications. The customer hereby agrees to enter into corresponding agreements with his customers and to provide proof of them at PAIRAN’S request. If the customer does not meet this obligation with the result that liability claims of third parties arise based on the German Product Liability Act against PAIRAN, the customer will hold PAIRAN harmless from such claims at PAIRAN’S initial request. Internally, any claims based on product liability are limited to the amount covered by the product liability insurance of PAIRAN.
§ 12 Export Regulations
If the products of PAIRAN are exported, the customer has to adhere to all export and customs regulations. Permits have to be obtained by the customer in time and have to be submitted to PAIRAN. If the customer does not fulfill this obligation, PAIRAN may withdraw from the contract without insofar being liable for damages towards his customer. It is solely the customer’s responsibility to check and to assess whether a product can only be exported with an export permit and/or the export is regulated by special control regulations.
§ 13 Copy Rights
PAIRAN reserves ownership and copy rights to diagrams, drawings, calculations and other documents created by PAIRAN. These documents and/or information may only be used in connection with the goods delivered by PAIRAN and may not be made available to third parties without PAIRAN’S express written consent. If the consignment includes software, the customer is admitted a non-exclusive and non-transferable right to use the software and its documentation by PAIRAN: The software is provided exclusively for appliance and utilization of the specific consignment. The utilization, duplication, revision, translation of the software as well as the conversion of the object code to the source code for other purposes is prohibited.
§ 14 Jurisdiction and Applicable Law
For all business relations between PAIRAN and the customer the current law of the Federal Republic of Germany is solely applicable. The CISG and the rules on the conflict of laws are excluded.
As far as the customer is a businessman (Kaufmann), a legal entity under public law or a special fund under public law, Göttingen, Germany, is the exclusive venue for all claims resulting from or in connection with the contractual relationship and these Terms and Conditions. PAIRAN may bring a claim against the customer at one of the customer’s general venues (right to chose).
§ 15 Miscellaneous
Any supplementary agreements besides the written contract and these Terms and Conditions have to be approved in writing by PAIRAN in order to be valid.
Any changes or additions to these Terms and Conditions have to be made in writing, while this requirement can only be waived by an explicit written declaration by PAIRAN on an individual basis.
In the event that any provision of these Terms and Conditions is or becomes invalid, the validity of the other provisions of these Terms and Conditions shall not be affected.
The parties agree to replace any invalid provision with a valid provision that most closely achieves the intended legal and economic effect of the invalid provision. Should this not be possible, any invalid provisions have to be reduced so that they become valid.
(As per August 5, 2010)