GENERAL TERMS AND CONDITIONS
As of 01.02.2015
General Terms and Conditions of TESVOLT GmbH
These terms and conditions apply to all sales of TESVOLT GmbH in the version valid at the time of the order. These general terms and conditions are an integral part of all offers of TESVOLT GmbH.
Following submission of an offer, the client agrees to the general terms and conditions of TESVOLT GmbH superseding its own general terms and conditions.
2. Conclusion of agreement
(1) Orders (“binding orders”) submitted by the client are binding and only lead to the conclusion of an agreement upon written acceptance (declaration of acceptance, order confirmation) by TESVOLT GmbH or the execution of the order by TESVOLT GmbH. These GTC are an integral part of all declarations of acceptance of TESVOLT GmbH. Section 1 shall apply mutatis mutandis. The client’s binding order shall be construed as an offer pursuant to Section 145 BGB (German Civil Code). TESVOLT GmbH may accept it in writing within 4 weeks, upon which the agreement shall be deemed concluded. Claims for damages due to the rejection of an order are excluded. Submission of a non-binding order request at www.TESVOLT.com does not constitute an order.
(2) TESVOLT GmbH reserves ownership and copyrights to illustrations, drawings, calculations, programs stored on data carriers, etc. These documents and/or data carriers as well as the data stored on them must not be made accessible to third parties. This applies in particular to such documents and/or data carriers that are designated as confidential. The client must obtain the express written approval of TESVOLT GmbH prior to forwarding such documents to third parties.
(3) Confirmation of receipt of the binding order shall not constitute a declaration of acceptance. It merely serves to confirm receipt of the order documents.
(4) Insofar as the subject matter of the agreement is to be firmly connected with a building or property, the client declares that it is the owner of the building / property or has been authorised to conclude the agreement by the property owners. The client shall inform TESVOLT GmbH unasked and without delay about the property rights or any change in the property rights before complete payment of the purchase price.
3. Installation, delivery and assembly time
(1) Unless otherwise agreed in writing, the following provisions shall apply to the installation:
The client shall duly provide/perform the following at its own expense:
a) all excavation, construction and other external ancillary activities, including the necessary specialist and auxiliary personnel, construction materials and tools,
b) energy and water at the installation site, including the required connections,
c) the client must take all necessary measures to protect the delivery and assembly personnel at the construction site,
d) the client must provide all necessary information on the location of concealed power lines, gas mains, water pipes or similar facilities as well as any necessary information with regard to the statics before commencement of the assembly work unasked. Before commencement of the installations, all preliminary work to be carried out by the client must have progressed so far that installation or assembly can commence as agreed and be completed without interruption. Access routes and the installation or assembly site must be levelled and cleared.
(2) The delivery and assembly times are specified in the binding order. The seller may exceed the aforementioned assembly and delivery date by 8 weeks.
Compliance with our delivery obligations shall depend on the due and timely fulfilment of the client’s obligations. The client shall ensure that all necessary permits are issued. The client shall obtain any official building permits that may be required for the installation of the system.
Adherence to the delivery time specified by TESVOLT GmbH is therefore subject to the clarification of all technical questions as well as the timely and proper fulfilment of the client’s obligations, in particular the timely receipt of all documents to be supplied by the client, necessary permits, approvals, compliance with the agreed terms of payment, in particular the receipt of an agreed down payment, security deposit or any letters of credit. Should these conditions not be met on time, the periods shall be extended accordingly.
(3) Any subsequent amendments to the agreement, which affect the delivery time, shall result in it being extended appropriately. The same shall apply to delivery delays due to force majeure, i.e. if TESVOLT GmbH is prevented from fulfilling the delivery commitment by unforeseeable, extraordinary circumstances – which were unavoidable despite exercising the reasonable care due under the circumstances – regardless of whether these occurred at TESVOLT GmbH or at a subcontractor, such as, for example, labour shortages, strikes, lockouts, business interruptions, transport difficulties, lack of essential raw materials, mobilisation, war, rioting, etc.
Both parties undertake to notify one another without delay of any difficulties or delays during the performance of the agreement.
(4) Partial deliveries are permissible in any case, provided that they are reasonable for the client.
(5) In the case of an agreed financing service pursuant to Section 6 of these GTC, the delivery periods shall commence following receipt of the financing confirmation from the bank and payment of the down payment due upon conclusion of the agreement.
(6) TESVOLT GmbH may use third parties to fulfil its duties.
(1) Upon completion, the client is obliged to perform an immediate acceptance inspection. Acceptance may not be refused because of insignificant defects. TESVOLT GmbH may set a reasonable deadline for the submission of the declaration of acceptance, after which the goods and service shall be deemed accepted.
(2) At the request of TESVOLT GmbH, the client is obliged to perform a partial acceptance inspection. Commissioning of the subject matter of the agreement and/or its use by the client shall always be construed as acceptance of the goods/service, unless the performance of a trial operation has expressly been individually agreed with the client.
(3) All products are manufactured according to the state of the art. Technical modifications and changes in shape, colour and/or weight are reserved within reasonable limits, especially if the replacement of certain types of batteries or elements is advantageous for the client and is in accordance with the state of the art and no additional costs arise for the client.
(4) TESVOLT GmbH bears the risk until acceptance of the subject matter of the agreement. Following the acceptance of the part of the subject matter of the agreement, the risk for this part passes to the client. If the subject-matter of the agreement is damaged or destroyed after delivery to the client and before acceptance due to force majeure or other unavoidable circumstances for which TESVOLT GmbH is not responsible, the latter shall be entitled to payment for the work performed to date and the other costs incurred. In particular, this work also includes all goods or services connected to the client’s building and that have become part of its structural fabric, regardless of their degree of completion. If the client has claims against third parties due to the destruction or damage before acceptance, then it undertakes to assign these – if legally permissible – to TESVOLT GmbH at the request of TESVOLT GmbH.
5. Terms of payment
(1) The purchase price owed for the ordered goods is a flat fee plus the value added tax applicable at the time of delivery.
(2) Unless terms of payment have been expressly agreed with the client, the payment must be made by transfer to the account of TESVOLT GmbH as follows: 50% (including VAT) of the purchase price after receipt of the order confirmation and invoice, 50% (including VAT) 10 days before delivery of the facility.
(3) A cash discount is not permitted, unless this has been expressly agreed with the client.
(4) If the payment is not made on time, TESVOLT GmbH shall be entitled to cease work and to remove unused material from the construction site at the expense of the client.
(5) The client can only offset payments with claims that are undisputed, have been upheld pursuant to a final and absolute court decision or have been recognised by us. The client can only assert a right of retention if it is based on claims arising from the agreement. Claims of the client against TESVOLT GmbH may not be assigned without the consent of TESVOLT GmbH.
(1) Where the client makes use of the financing service, TESVOLT GmbH will inform the client of banks that will finance the subject-matter of the agreement.
The client may cancel the order if the credit institutions provided by TESVOLT GmbH do not approve the required credit resources within a reasonable period (three months) or finally reject the credit request. Until this financing commitment is received, the client shall not be deemed to be in default with its payment obligations pursuant to Section 5 of the agreement. The right of withdrawal does not apply if the client violates its obligations to cooperate and therefore the loan is not granted. Any statutory right of withdrawal of the client remains unaffected.
(2) The client undertakes to file all necessary applications, to furnish documents and to make all necessary declarations in order to enable the financing. TESVOLT GmbH will forward the documents required by the banks and support the loan application as necessary.
(3) In case of an application for funding, TESVOLT GmbH will support the application. If the funding has not been granted, the client has no right of withdrawal. Before submitting the binding offer, the client is advised to request confirmation from the funding body that it is eligible for funding.
Consumers within the meaning of section 13 BGB are hereby informed of our cancellation policy as follows:
Right of cancellation:
You may cancel the agreement within 14 days without giving reasons by making an unequivocal statement. The period commences following receipt of this policy on a permanent data carrier, however not before conclusion of the agreement and not before fulfilment of our duties to inform pursuant to Article 246b section 2 (1) in conjunction with Article 246b section 1 (1) Introductory Act to the German Civil Code (EGBGB). In order to observe the cancellation period, timely dispatch of the notice of cancellation is sufficient if the declaration is made on a durable data carrier (e.g. letter, fax, e-mail).
Notice of cancellation must be sent to:
Am Alten Bahnhof 10
06886 Lutherstadt Wittenberg
Fax.No.: +49 (0) 3491 / 459 516 90
Consequences of cancellation::
In case of an effective cancellation, the goods, services or payments received by both parties must be returned. You are required to reimburse us for the value of the service provided until the time of cancellation, if you were informed of this legal consequence prior to your contractual declaration and expressly agreed that we are to commence the service before the end of the cancellation period. If there is an obligation to pay us compensation, this may mean that you must nevertheless fulfil your contractual payment obligations for the period until the time of cancellation. Your right of cancellation expires prematurely, if the agreement is completely fulfilled by both parties at your express request, before you have exercised your right of cancellation. Any obligations to reimburse payments made must be fulfilled within 30 days. The period begins for you when you send your notice of cancellation and for us when we receive such notice.
If you withdraw from this agreement, you will no longer be bound by any other agreement related to this agreement, if the related agreement concerns a service provided by us or a third party based on an agreement between us and the third party.
End of the cancellation policy
(1) In the case of faulty performance or delivery, TESVOLT has the right, at its option, to remedy the defects free of charge or to provide a replacement free of charge in exchange for the defective goods/service. If the remedy of the defect is unreasonable for TESVOLT GmbH or if it is impossible or would require a disproportionate effort and is therefore refused by TESVOLT GmbH, the client may reduce the remuneration by declaration to TESVOLT GmbH (section 638 BGB).
Insofar as the client sets TESVOLT GmbH a period for remedying the defects, this must be reasonable. In this regard, it must be taken into account whether certain parts of the goods have to be individually manufactured or procured.
(2) TESVOLT GmbH does not provide any guarantee, unless this has been expressly agreed with the client.
If manufacturers provide guarantees, the guarantee documents will be handed over by TESVOLT GmbH.
(3) Waste batteries contain valuable raw materials that are recycled. We take back the supplied batteries free of charge at TESVOLT collection points.
(1) If the subject matter of the agreement cannot be used by the client due to non- or faulty implementation of suggestions and advice provided before or after the conclusion of the agreement or as a result of any breach of other secondary contractual obligations, in particular instructions concerning the operation and maintenance of the delivery item, then the following provisions shall apply mutatis mutandis, to the exclusion of further claims of the client.
(2) TESVOLT GmbH is only liable – for whatever reason – for damages not affecting the subject of the agreement itself:
a) in case of intent
b) in the case of gross negligence on the part of the owner/executive bodies or senior executives
c) in the case of culpable injury to life, body and health
d) in the case of defects that were fraudulently concealed or whose absence was guaranteed by TESVOLT GmbH,
e) in the case of defects to the delivery item as far as the German Product Liability Act provides for liability for personal injury or property damage to privately used objects.
In the event that we are liable for slight or grossly negligent breach of material contractual obligations, our liability is limited in amount to only the contractually typical, reasonably foreseeable damage. Insofar as we negligently breach a material contractual obligation, our duty to pay compensation for damage to property or personal injury is also limited to the indemnity paid by our product liability insurance. TESVOLT GmbH will furnish evidence that it has concluded liability insurance on request. Further claims are excluded, in particular any claims for financial losses including lost profits.
(1) TESVOLT GmbH may rescind the agreement if the client fails to perform an act incumbent upon it (obligation to cooperate pursuant to section 642 BGB) and fails to do so despite a reminder and a reasonable grace period and, as a result, TESVOLT GmbH is unable to perform the agreed services. Notice of rescission must be in writing.
(2) TESVOLT GmbH is also entitled to rescind the agreement if the client does not fulfil its obligation to pay despite a reminder and a reasonable grace period.
(3) If the client does not fulfil the agreement without being entitled to do so, TESVOLT GmbH may demand compensation instead of performance after rescinding the agreement. The claim for damages amounts to a flat rate of 15% of the agreed net purchase price.
The claim for damages can be assessed higher if TESVOLT GmbH provides evidence of a higher damage. The claim for damages is to be assessed lower, if necessary reduced to zero, if the client provides evidence of a lower damage.
10. Reservation of title
(1) TESVOLT GmbH reserves title to and the right to dispose of all goods and services until all payments have been received. If a partial acceptance takes place, ownership will pass upon receipt of all necessary payments.
(2) Insofar as the delivery items or services have become an integral part of the client’s property, the client undertakes, at the request of TESVOLT GmbH, to permit the dismantling of the items in the event of non-compliance with the agreed payment dates, or in case of co-ownership by third parties to obtain the permission, and to transfer back or transfer ownership of the items to TESVOLT GmbH. In this case, the costs of dismantling shall be borne by the client.
11. Data protection
(1) TESVOLT GmbH will treat the personal data of the client as confidential and use it in compliance with the provisions of the Federal Data Protection Act. The personal data will be saved by TESVOLT GmbH and may be made available to service partners as part of the implementation of the agreement. In addition, personal data will only be disclosed to third parties insofar as permitted by law or the client has given its consent.
Privacy-related consent given by the client may be revoked at any time with effect for the future. The client is entitled to have all its data deleted, provided that it is not required for the fulfilment of not yet completed agreements or insofar as it must be saved by TESVOLT GmbH due to statutory retention and accounting obligations. However, in this case, the data will be blocked.
(2) The client has the right to request information about the scope and use of its data at any time. Should the client wish to have its personal data modified, corrected or deleted, it may contact TESVOLT GmbH for this purpose.
12. Final provisions
(1) The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). This does not affect the mandatory provisions of the state in which the client has its habitual residence.
(2) The place of jurisdiction is the registered office of TESVOLT GmbH, insofar as the client is a registered trader. The same applies to the extent that the client is not domiciled or resident in the Federal Republic of Germany when filing the action.
(3) If individual provisions of this agreement should be or become ineffective or invalid either in whole or in part, this shall not affect the validity of the remainder of this agreement. The parties undertake to replace the ineffective or invalid provision with a valid provision which comes closest to the intended economic purpose. The same applies in case of a gap that needs to be filled.