General Terms and Conditions of dibu-energie Jan Bruhn
Business address: Vadersdorf 1, 23769 Fehmarn
§ 1 Validity
(1) All supplies, services and offers of dibu-energie (the Seller) shall be subject solely to these General Terms and Conditions of Supply. They shall form part of all contracts which the Seller concludes with its contractual partners (the Customer) relating to the supplies or services offered by it. They shall also apply to all future supplies, services or offers to the Customer, even where they are not again agreed separately.
(2) The terms and conditions of the Customer or third party shall not be applicable, even where the Seller does not oppose their applicability in a given case. Even where the Seller refers to a written document containing the general terms and conditions of the Customer or a third party, this shall not constitute consent to the applicability of those terms and conditions.
(3) These general terms and conditions shall only apply to business persons, public legal persons or special funds governed by public law within the meaning of Section 310(1) of the German Civil Code (BGB), save as otherwise confirmed in our offers or order confirmations.
§ 2 Offer and Conclusion of a Contract
(1) All of the Seller’s offers are non-binding and without obligation, provided they are not expressly indicated as being binding or contain a specific deadline for acceptance.
(2) Any supplements and amendments to the agreements concluded, including to these general terms and conditions of supply, shall require written form in order to be applicable. With the exception of managers or authorised signatories, the Seller’s employees shall not be entitled to conclude verbal agreements which deviate from these terms. Transmission by fax or e-mail shall be sufficient to comply with the requirement of written form.
(3) Information provided by the Seller regarding the goods or services to be supplied and our representations thereof are merely approximate unless exact conformity is required for their use for the purpose for which the contract is being concluded. They do constitute guaranteed characteristics but descriptions or designations of the goods or services to be supplied. Normal commercial deviations and deviations resulting from legal provisions or technical improvements and the replacement of parts with equivalent parts shall be permitted provided they do not affect use for the purpose for which the contract is being concluded.
§ 3 Prices and Payment Terms
(1) Prices shall be valid for the scope of service and supply indicated in the order confirmation. Additional or special services shall be charged separately. Prices are indicated in euros ex office of the supplier and are subject to the addition of packaging and transport costs and statutory VAT and, in the case of supplies for export, customs duties and fees and other public taxes.
(2) The goods ordered shall be delivered solely against advance payment without discount. Payment must be credited to the Seller’s bank account five working days before the date of dispatch. Instead of payment, an unlimited and directly enforceable bank guarantee of a bank authorised to do business in Germany corresponding to the claim shall also be accepted by the Seller. The guarantee shall be returned immediately after the claim has been met in full. Payment shall be deemed to have taken place once it has been received by the Seller. Cheques shall be deemed to constitute payment only after they have been cleared.
(3) Setting-off against counter-claims of the Customer or withholding of payment because of such claims shall be permitted solely where the counter-claims in question are undisputed or legally established. This shall also apply to any right of retention owing to alleged defects in the goods or services supplied prior to execution of the guarantee or to the right of retention pursuant to Section 369 of the German Commercial Code (HGB).
§ 4 Supply and Period of Delivery
(1) Supplies shall be made from the Seller's head office and are subject to full payment in advance.
(2) Any time limits and deadlines indicated by the Seller for the supply of goods and services shall only ever be approximate unless a fixed time limit or fixed deadline has been promised or agreed. An agreed deadline shall be deemed to have been met once the goods/services are available to the person having placed the order. If shipping has been agreed, delivery time limits and deadlines shall refer to the time of handover to the forwarding agent, carrier or other third party assigned to transport the goods.
(3) The Seller may, notwithstanding its rights resulting from default on the part of the Customer, request an extension or deferral of deadlines for the supply of good or services from the Customer by the period of time for which the Customer fails to meet its contractual obligations vis-à-vis the Seller.
(4) The Seller shall not be liable for circumstances rendering supply impossible or giving rise to delays in supply which are caused by force majeure or other events which were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official authorisations, official measures or non-delivery or incorrect or late delivery by suppliers) for which the Seller is not responsible. Where such events make it significantly more difficult or impossible for the Seller to supply the goods or services in question, the Seller shall be entitled to withdraw from the contract. In the event of temporary impediments, deadlines for the supply of goods or services shall be extended or deferred by the period of impediment plus an appropriate lead time. Where the Customer cannot reasonably be expected to accept the supply of goods or services as a result of such delay, he may withdraw from the contract subject to its giving immediate written notice to the Seller.
(5) The Seller shall be entitled to supply the goods or services in part.
§ 5 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising out of the contractual relationship shall be the Seller’s registered head office (Oldenburg/Holstein).
(2) The mode of dispatch and packaging shall be determined at the discretion of the Seller while ensuring that it duly meets its obligations.
(3) The risk shall be transferred to the Customer on handover of the goods to the forwarding agent, carrier or other third party assigned to transport them. Where dispatch or delivery is delayed as a result of a circumstance caused by the Customer, the risk shall be transferred to the Customer from the day on which the goods are ready for dispatch and the Seller has notified that fact to the Customer.
(4) Storage costs after the transfer of risk shall be borne by the Customer. In the event of storage by the Seller, storage costs shall amount to [0.25%] of the invoice amount of the goods to be stored per full week. It shall nevertheless remain possible to claim and substantiate higher or lower storage costs.
(5) Shipping shall be insured by the Seller solely at the express request of the Customer and at the latter’s expense.
§ 6 Warranty, Material Defects
(1) The period of warranty shall be 2 years from delivery.
(2) The delivered goods shall be carefully examined immediately after delivery to the Customer or a third party designated by it. They shall be deemed to have been approved if the Seller does not receive written notification of defects relating to apparent defects or other defects which could have been identified on the basis of an immediate, careful examination of the goods within seven working days of delivery of the goods, or otherwise within seven working days of the discovery of the defect or any earlier time at which the defect could have been identified by the Customer as a result of normal use of the goods without closer examination, in the manner stipulated in the sixth sentence of Section 2(2). At the Seller’s request, the goods in question shall be returned to the Seller carriage paid. In the case of a justified notification of defects, the Seller shall refund the costs of the least expensive mode of dispatch; this shall not apply where the costs are increased by the fact that the goods are located at a place other than the place of intended use.
(3) In the event of material defects to the goods supplied, the Seller shall, at his discretion exercised within a reasonable period of time, be initially obliged and entitled to repair or replace the goods. Where the Seller fails to comply with this obligation because it is impossible for him to do so, it cannot reasonably be expected to do so, he refuses to do so or there is an unreasonable delay in repairing or replacing the goods, the Customer may withdraw from the contract or reduce the purchase price accordingly.
(4) In the event of defects to parts of other manufacturers which the Seller is unable to eliminate for licensing or other specific reasons, the Seller shall, at his discretion, enforce his warranty claims against the manufacturer or supplier on the Customer’s behalf or assign them to the Customer. Warranty claims against the Seller shall exist in the event of such defects, subject to the other conditions and stipulations of these general terms and conditions of trade, solely where it has not been possible to enforce the above-mentioned claims against the manufacturer and supplier by judicial means or there is no prospect of their being enforced, for example due to insolvency. The limitation period for the Customer’s warranty claims in question shall be suspended for the duration of the legal dispute.
(5) The warranty shall be rendered invalid where the Customer alters the goods or has them altered by a third party without the Seller's consent and, as a result, it is no longer possible or it is made unreasonably difficult to eliminate defects. In any case, the Customer shall be required to bear any additional costs of eliminating the defects arising as a result of the alteration.
(6) Any used goods supplied with the agreement of the Customer shall not be subject to any warranty as regards material defects.
(7) In the case of solar panels, performance tolerances of +/-4 % shall not be deemed to constitute a material defect.
(8) Where possible, the Seller shall assign any warranty or guarantee claims it may have against suppliers to the Customer after expiry of the period referred to in Section 6(1).
§ 7 Property rights
(1) Subject to the stipulations of this Section 7, the Seller shall be responsible for ensuring that the goods supplied are not encumbered by any third-party property rights or copyright. Each contracting partner shall inform the other contracting partner immediately in writing where claims are enforced against it owing to the infringement of such rights.
(2) In the event that the goods infringe a third-party commercial property right or copyright, the Seller shall, at its discretion and expense, alter or exchange the goods in such a way as to ensure that no third party rights continue to be infringed but that the goods continue to comply with their contractually agreed functions, or shall acquire a right of use through the conclusion of a licencing agreement.
§ 8 Liability for compensation owing to fault
(1) Liability on the part of the Seller, its bodies, statutory representatives, employees or other agents shall be limited to intent and gross negligence.
(2) Liability for indirect losses and consequential losses shall be excluded.
(3) Where the Seller provides technical information or advice and this information or advice does not form part of the scope of supply required of it and agreed under the contract, it shall be provided free-of-charge and without liability of any kind.
(4) The restrictions of this Section 8 shall not apply to liability on the part of the Seller for guaranteed characteristics, loss of life, bodily injury or damage to health or pursuant to the German Product Liability Act [Produkthaftungsgesetz].