Greencells GmbH

General Terms and Conditions for the Supply of Goods and Services

for Business to Business Supplies to

commercial Undertakings within the Meaning of Sections 14 (I), 310 BGB [German Civil Code]

 

Section 1 General – Scope

  1. The basis for any contractual relationship Greencells and the Customer enter into consists of the following elements, which apply in the order set out below:
  1. Individual Agreements entered into with the Customer (hereinafter referred to as “Individual Contract” or “Individual Arrangement”);
  2. Our Binding Offer (specifications, service descriptions) as well as any design drawings or construction plans;
  3. the provisions of the VOB/B [Part B of the German Standard Building Contract Terms];
  4. the provisions of the respectively applicable building regulation (-s);
  5. the project data sheet of the Customer;
  6. the cross-section of the sub-structure of the Customer;
  7. the length of the sub-structure provided by the Customer;
  8. the site map provided by the Customer;
  9. the module data sheet/assembly instructions for the PV modules at hand;
  10. the construction schedule;
  11. assembly instructions;
  12. quality assurance documentation;
  13. list of defects/damage to PV modules;
  14. the BGB [German Civil Code];
  15. construction progress or performance level protocol (-s);
  16. the list of return shipments to the construction site; and
  17. our price list for working materials for PV-projects.

 

  1. These Terms and Conditions (“T&Cs”) do not apply to end consumers. The services, supplies and offers which we render, deliver or submit to commercial undertakings within the meaning of Section 14 BGB (hereinafter referred to as the “Customer”) are subject to these T&Cs exclusively. These T&Cs apply to all existing and future business relationships between the Greencells GmbH or, as the case may be, Greencells Group’s subsidiaries (hereinafter referred to as “Greencells”) and the Customer (hereinafter jointly referred to as the “Parties”); the same applies in cases in which these T&Cs have not been explicitly introduced and accepted anew. We hereby explicitly reject any terms and conditions which contravene or deviate from these T&Cs and we do not accept such terms and conditions, except where Greencells has accepted such terms and conditions explicitly in writing. We hereby explicitly reject any references of the Customer to his own business terms and conditions or terms and conditions of purchase. Our T&Cs also apply in the event that we make deliveries to the Customer and/or perform our duties without reserving any rights, despite having been made aware of terms and conditions which may contravene/deviate from our T&Cs. The present T&Cs – without prejudice to any deviating formally valid contractual agreements – form an integral part of all offers submitted by Greencells and can be accessed for purposes of perusal and facilitation of hardcopy printouts on our website www.greencells.de, using the link “Contact”.

 

  1. Deviating Individual Arrangements which Greencells and the Customer may enter into must be made in writing in order to be valid. The provisions of any EPC contract, general contractor or sub-contractor agreement or purchase agreement prevail over the provisions of these T&Cs, as pre Section 1. a).
  2. In the event that following the performance of an Individual Contract, damage and loss or defects occur which do not fall within the scope of any individually agreed warranties and for which Greencells cannot be held responsible, or in the event that following the performance of an Individual Contract, further services which the Parties did not contemplate upon entering into the respective Individual Contract are being performed, the present T&Cs apply instead of any provisions stipulated in the respective Individual Arrangement.
  3. Should one or several provisions of these T&Cs prove to be or become void, invalid or unenforceable, the remainder of the provisions shall remain unaffected.

 

Section 2 Offer – Acceptance – Offer Documentation

1. Estimative Offer

For purposes of orientation and planning, Greencells will in a first step submit a non-binding offer, which will act as basis for further planning and scheduling whilst the relevant data and details are being assessed and verified and which does not legally bind Greencells or the Customer in any way.

2. Fixed Price Offer

In a second step, Greencells will submit a fixed price offer which shall remain legally binding for a period of time of seven (7) business days. The time limit begins to run upon receipt of the fixed price offer and the Customer is obliged to accept said fixed price offer within this period of time, otherwise the offer expires.

3. Acceptance of the Fixed Price Offer (Binding Offer), Conclusion of Contract

If the Customer accepts the Fixed Price Offer, said offer becomes an integral part of any Individual Contract which Greencells and the Customer have entered or will enter into (e.g. EPC contract, general contractor or sub-contractor agreement or purchase agreement) and specifies and complements the latter (Binding Offer). The conclusion of the contract is conditional upon timely receipt of correct deliveries from Greencells’ suppliers by Greencells provided that Greencells cannot be held accountable for any missing or incomplete deliveries. We will notify the Customer of such without delay and reimburse any consideration received to the extent in which we are exempt from our duties and provided that the Customer does not enter into any substitute transactions.

4. Oral Agreements, Ancillary Agreements, Representations and Warranties, Amendments

Oral agreements and ancillary agreements as well as any representations and warranties concluded with or given by Greencells’ employees require a written confirmation by the board of directors of Greencells in order to be legally binding; the same applies to any additions and amendments. Descriptions of quality or use do not amount to a guarantee or representation within the meaning of Section 276 (I) and/or Section 443 BGB, except where Greencells has expressly made such declarations in writing. The above shall have no influence on any guarantees, warranties and commitments (in particular such relating to PV modules or inverters) given by manufacturers, however, Greencells cannot be committed to anything that goes beyond Greencells’ warranty by virtue of any declarations made by manufacturers.

Greencells hereby expressly states that the Customer does not have a claim for the delivery of signed and sealed originals or copies of guarantees, warranties, quality assurance agreements and declarations of conformity issued by manufacturers and suppliers of components and that a one-off communication of the above-mentioned declarations and documents in the form it was issued by the manufacturer respectively shall suffice, see Section 126b BGB (Text Form).

5. Offer Documentation, Confidentiality

We reserve the right to modifications to the design or deviations from dimensions and technical data pertaining to any goods supplied, as well as to amendments to the procedures with the help of which we render our contractual performances, insofar as these represent customary and/or unsubstantial modifications and deviations and in particular if these represent improvements to the delivery or performance.

 

However, technical modifications must be reasonably acceptable for the Customer. Greencells is not obliged to carry out such modifications in relation to products which have already been delivered or services which have already been rendered if the project at hand has already been completed.

 

Greencells may correct errors contained in prospectuses, price lists, offer documentation or other documents and the Customer may not derive any claim from such errors against Greencells.

 

Greencells reserves all existing or future proprietary or other intellectual property rights and copyrights to any images, drawings, calculations created by it.

 

The Customer hereby agrees to treat any documentation or information of which he becomes aware in the context of the implementation of the respective construction agreement as strictly confidential.

 

The same applies to all other documentation, documents and information which have been designated as “confidential” orally or in writing, irrespective of the data carrier in which these are contained.

 

The duty to confidentiality does not extend to information which is in the public domain or becomes publicly known without any fault on the side of the Customer, as well as to information which have been expressly released for publication. The Customer must obtain our prior written consent before he forwards or discloses any confidential information to third parties. The Customer may not use, modify or exploit the documentation created by Greencells for purposes of the project at hand (including the planning documentation) nor may he assign any rights in such documentation to third parties, in particular to the proprietors or beneficiaries or tenants in equity and/or the developer.

 

We hereby inform the Customer of the fact that his data is being processed and saved.

 

 

Section 3 Prices

1. The quoted prices are net prices and exclusive of the respective applicable statutory VAT.

2. Early payment discounts may only be deducted where Greencells has given its prior written consent or where a respective offer has been included in the Fixed Price Offer.

3. Insignificant surplus or short deliveries from our part do not constitute a defect or a breach of contract but merely entail an adjustment of the contract price relative to the quantity actually delivered, except where we have expressly guaranteed the delivery of the exact amount ordered by the Customer or where from an objective point of view the surplus or short delivery is not reasonably acceptable for the Customer.

 

4. Where performances are being rendered by Greencells for which no prices have been agreed in advance, Greencells must be remunerated separately for every such performance carried out by it. The same applies to performances which have not been contemplated in the respective Individual Contract and which the Customer demands from Greencells and which Greencells performs. In such cases, the remuneration follows our price list as per the date of performance or delivery. Otherwise, the remuneration shall correspond with what is considered to be a fair and equitable consideration for such performances at the place of performance.

 

 

5. Price Advance

The Fixed Price Offer is based on the collective agreement wage tariffs as well as the costs of working materials and transport costs applicable at the time. Where a fixed price has been agreed and the prices of Greencells’ suppliers for items and materials to be procured by Greencells increase more than 10% after an Individual Agreement within the meaning of Section 2 above has been concluded (price advance), Greencells is entitled to invoice the Customer with the price advance or, in the event that the Customer does not approve of such, to rescind the respective Individual Arrangements with immediate effect; in this case, neither Party may assert any claims for damages against the respective other Party on these grounds.

Greencells will notify the Customer of any price advances without delay und will endeavour to develop alternative solutions in cooperation with the Customer.

Where the costs of such price advances exceed the net contract value more than 8%, the Customer is entitled to cancel his order and to rescind the respective Individual Contracts within seven (7) business days following the receipt of the notification of the price advance, in this case, the Customer does not have any further claims against Greencells.

 

Section 4 Terms of Payment, Late Payments

1. Unless anything has been provided to the contrary in our Binding Offer document, any invoices submitted by us as well as any costs and charges become due for payment within seven (7) business days following the invoice date. Where the works or larger deliveries are to be accepted in instalments and the remuneration for these is being determined individually, the remuneration for each part becomes due for payment within seven (7) business days following its acceptance or seven (7) business days following the submission of the respective invoice, whichever event occurs earlier. The crediting of the respective amount to our bank account or the value date of any securities given (e.g. cheque) shall be decisive as regards the punctuality of any payments made.  Partial payments will only be accepted where such mode of payment has been agreed between the Parties in writing. Discount charges and collection charges are to be borne by the Customer and become immediately due for payment.

2. Upon the expiry of the time limit specified above, the Customer is in default of payment. Where nothing to the contrary has been agreed, the provisions of the BGB and the HGB [Handelsgesetzbuch – German Commercial Code] regarding late payments apply. However, we may charge – without prejudice to any further claims – interest in the amount of 8% above the base rate of the European Central Bank at the least. We reserve the right to assert a claim for damages for late payment which exceeds the amount so derived.

3. The Customer may set-off and claim rights of retention only where his respective counterclaims have been finally adjudicated, are undisputed or have been acknowledged by Greencells in writing. Further, the Customer may only claim a set-off or a right of retention, irrespective of the legal foundation, if his counterclaim derives from the same contractual relationship; an ongoing business relationship does not count as “the same contractual relationship from which his duty arises” within the meaning of Section 273 BGB. Likewise, the Customer may only assert a right to refuse performance pursuant to Section 320 BGB where his respective counterclaims have been finally adjudicated, are undisputed or have been acknowledged by Greencells in writing and “are based on the same contractual relationship”. The same applies to any rights of retention derived from alleged defects prior to the assertion of warranty claims and for the right of retention pursuant to Section 369 HGB. Further, we hereby abrogate Section 641 Para 3 BGB insofar as this is legally permissible.

4. We are entitled to credit payments made by the Customer to his oldest debt, irrespective of any terms and conditions of the Customer to the contrary. Where costs and interest have already accrued, we are entitled to credit respective payments to costs first, then to outstanding balances of interest and in a last step to the capital owed. We shall notify the Customer of the method of settlement chosen. The defaulting Customer is obliged to reimburse Greencells any costs it incurred for purposes of debt collection, compulsory execution, for obtaining relevant information as well as any reasonable legal fees.

5. Where the Customer fails to honour his payment obligations, where payments are delayed, where the Customer has ceased to make payments, or in cases in which the Customer asks for the payment to be deferred or should, following the conclusion of an Individual Arrangement, circumstances arise which cast doubt on the creditworthiness of the Customer, we are entitled to declare all claims that we have against the Customer to be due for payment, even where Greencells has accepted cheques or debentures as consideration.

6. Without prejudice to any other claims and rights we may have, in the event of a late payment of the Customer, Greencells is entitled to refuse to render any other contractual performances owed to the Customer by virtue of an Individual Contract entered into or by virtue of similar agreements which form part of an ongoing business relationship until the payment owed by the Customer has been made in full, or to make any further contractual performances conditional upon the receipt of an advance partial payment or upon the grant of adequate collateral, or to claim damages and rescind the Individual Contract. The above does not apply in cases in which the Customer rightly invokes substantial defects in our contractual performance.

 

Section 5 Retention of Title and further Collateral

1. Greencells retains the legal title to all goods, components and working materials delivered and installed by Greencells to the maximum legally permissible extent until the total liabilities stemming from the [ongoing] business relationship (including any ancillary claims and any expenditures incurred for the benefit of the Customer) have been settled. In the case of a running account (current account), the retention of title serves the purpose of securing our balance claim; the same applies where payments on specific liabilities are being made. Where the Customer fails to object to a notice of a balance claim within two weeks after its service, the balance claim is deemed to have been approved of. The Customer is obliged to protect and maintain the legal title to our property even where the goods delivered and the works performed are not designated for the Customer but for third parties, whom the Customer is obliged to explicitly notify of our retention of title. The Customer is obliged to report any change of location of goods delivered or works created without delay and to ensure Greencells’ unhindered access to the goods or the works at all times until these have been paid for in full. Where third parties have been granted access to the goods or the works, the Customer must indicate that the legal title to them has been retained by Greencells. Actual or legal possession of the goods or the works by third parties as well as any damage and loss must be communicated to Greencells in writing without delay. In the case of the grant of a pledge, the pledge protocol or the respective judicial order must be produced. The Customer is obliged to bear any costs arising from a necessary intervention on our part.

 

2. The Customer is only entitled to process and/or to dispose of goods which are subject to retention of title in the ordinary course of business if we have given our prior written consent and provided that it has been ensured that any claims stemming from the selling-on or the processing will be assigned to us. In this case, the retention of title passes on to the claim which the Customer has or acquires against a third party by way of disposing of or processing goods which are subject to retention of title; the third party is still entitled to collect said claims provided that he orderly performs his payment obligations in relation to us. Otherwise and in particular in the case of late payments, cessation of payments, refusal to pay, the submission of an application for or the initiation of insolvency proceedings over the assets of the Customer or in any other case of a deterioration of his financial situation, we are entitled to demand from the Customer the disclosure of the assigned claims and the respective debtors as well as any other information required for the collection of the claims and the delivery of any documentation required for such, and to collect the assigned claim ourselves and to notify the respective third party of such. Where the Customer disposes of goods which are subject to retention of title together with other items which are not the property of Greencells, an assignment of the claim arising from such, plus 10%, is deemed to have been agreed on. The Customer is obliged to handle the goods with care and in particular, to insure them for their original value against damage and loss caused by fire, water, theft and vandalism.

3. In the event of any actions on the part of the Customer which are contrary to contract, e.g. in the case of late payments, in particular in the case of a default of payment of liabilities which are collateralised by way of retention of title or in the case of a substantial deterioration of the financial situation of the Customer, an impairment of or danger to the collateral granted to us or to our sub-contractors or in the case of an improper handling of goods or a delivery of goods which are subject to retention of title which represents a breach of duty, we have a right to rescind any Individual Contracts entered into pursuant to Section 449 II BGB, subject to a grace period of two weeks. In the case of an exercise of said right of rescission, we have a claim for possession and recovery regarding working materials and components. The Customer is obliged to deliver said materials and components. However, such rescission must be declared expressly in writing in order to be valid. In this context, we are entitled to acquire actual possession of the materials and components or the works by way of autonomous action, should the Customer refuse to deliver. Further, we are entitled to acquire possession of the goods without having to rescind the Individual Contract.

4. We hereby agree to release collateral as far as excess amounts are concerned upon request of the Customer, provided that their value exceeds the claim that needs to be collateralised by more than 20%, insofar as the latter has not yet been settled.

5. Where the materials and components are being intermixed or combined with items which belong to third parties, we acquire co-ownership of the uniform thing so derived pro rata in relation to the value of the materials and components or, as the case may be, the works delivered by us.

 

Section 6 Times of Delivery or Performance

1. Agreements regarding delivery times or deadlines for agreed contractual performances must be made in writing in order to be valid. Where we find ourselves unable to perform agreed delivery and other obligations despite our reasonable endeavours, the Customer is obliged to grant us a grace period of four (4) weeks for specific performance; the Customer may only invoke other legal remedies after this grace period has passed. Otherwise, the provisions contained in Section 8 apply.

2. Delays in delivery or performance for which we cannot be held responsible, e.g. such caused by Force Majeure or by events which render the delivery or performance owed by us not merely temporarily significantly more difficult or impossible – this comprises, without limitation, industrial strikes or administrative orders, politically significant events, etc. (this comprises cases which concern our suppliers or their respective suppliers) – afford us to postpone the delivery or performance for a reasonable additional period of time and to rescind the respective Individual Contract in whole or in part following the expiry of a period of time of four (4) weeks as regards the part of the Individual Contract which has not yet been performed. Greencells will notify the Customer of the commencement and ending of such hindrances. We hereby agree to an assignment of any claims which we may acquire against our supplier in the event of a non-delivery or insufficient delivery to our Customer upon request.

3. The Customer may not invoke any legal remedies or contractual penalties against us if delays occur in the context of the Customer’s involvement with the implementation of the project by way of providing working materials, components, plant and machinery or the delivery of individual works.

4. Where we fail to meet an agreed deadline for a service to be rendered by us because preliminary works of other service providers have not yet been completed in accordance with the agreed schedule, the Customer is obliged to grant us a reasonable grace period. In this case, claims for damages can neither be asserted against Greencells nor against its sub-contractors.

5. Where faulty deliveries for which Greencells cannot be held responsible lead to shortages of working materials which in turn entail an interruption of the construction works, we shall be granted additional time for any installations to be performed by us and the respective deadline must be extended, taking into account the duration of the interruption.

6. Where interruptions of the construction works are caused by events specified in Paras 3, 4 and 5 above, we are entitled to invoice the Customer for the standby times of our personnel and machinery.

 

Section 7 Installation

1. Where Greencells has been instructed to perform construction-related services, the Customer must ensure the unhindered transportation of any working materials, components, plant and machinery to the construction site as well as reasonable working conditions for our workers and their respective unhindered access to the object or construction site in question. The Customer is responsible for ensuring that the transportation of the working materials, components and machinery to the place of delivery or that the performance of a service which the Customer has ordered is possible. The Customer is further responsible for the orderly and punctual acceptance of any contractual performances rendered by Greencells.

2. We do not assume any warranty or liability for the functionality of any working materials and components provided by Greencells or, as the case may be, for the entirety of the installation or for any defects which can be attributed to instructions given by the Customer in the context of the performance of works and installations whose implementation is based on technical or organisational instructions given by the Customer or on drawings, samples or technical designs provided by the latter.

 

3. The Customer shall indemnify us against any claims for damages asserted against Greencells by third parties, including such based on strict liability, except where we have caused damage and loss intentionally or by way of gross negligence.

 

4. The Customer warrants and represents that the manufacture, delivery and utilisation of any working materials, components and machinery in accordance with instructions given by the Customer does not infringe intellectual property rights of third parties. In the event of an assertion of third parties’ intellectual property rights against Greencells, we are entitled to rescind the Individual Contract following a consultation with the Customer without having to verify the validity of the claims raised by said third parties, except where such third parties waive their claim by way of serving a written notice within a period of time of eight (8) days following the receipt of a respective request. The Customer is obliged to compensate Greencells for any damage and loss arising from the assertion of such intellectual property rights. In the case of a rescission, Greencells must be remunerated for performances which have already been rendered. This shall go without prejudice to any further statutory rights.

 

5. The working materials, components, plant and machinery and construction-related documentation required for the implementation of the project remain the sole property of Greencells, except if provided for otherwise in an Individual Contract. The Customer does not have claim for the transfer of the ownership of the above, even where he has contributed to the respective costs, except if explicitly agreed otherwise.

 

6. The Customer does not have the right to ban our employees or subcontractors from the construction site or to declare a cessation of the construction works for the duration of the term of the Individual Contract entered into by the Parties, except where Greencells causes health injuries to or the loss of life of a natural person, or where Greencells engages in fraudulent behaviour.

 

 

Section 8 Liability for Defects and Warranty

1. Warranties

  1. The execution of the works and the deliveries correspond with the general state of the art of technology, within the framework of technologically required tolerances, and in fair merchantable quality.

The working materials, components and machinery to be procured by us or the works to be performed by us will be of fair merchantable average quality, except where Greencells has made an explicit representation in writing to the Customer. Any other recommendations or advertisements, made orally or in writing, as well as any statements made in public do not represent a guarantee or an agreement regarding the qualities of the working materials, components, machinery or the works. The same applies to the performance of agreed services. We hereby exclude any warranty for used items, working materials, components and machinery. Defects and defects in title of any deliveries, works or performances which exist upon the passing of risk are subject to the following warranty:

The Customer is obliged to inspect the items, working materials, components and machinery or the works, or, as the case may be, the service performed for defects or for deviations from agreed characteristics without delay, the same applies for deliveries of items which evidently have not been ordered or works which have been performed in deviation from the Customer’s order. The Customer must notify Greencells of any apparent defects or deviations within a period of time of three (3) days following delivery/acceptance in writing, per fax or via email. Any notifications given orally do not afford the Customer to meet the deadline.  

Our performances are deemed to have been accepted and approved within four (4) days following their completion if we do not receive a notice of defects in writing or if our performances are not consensually included into a defects punch list. Where a defect or a deviation becomes apparent at some later stage, the period of time for the assertion of the warranty claim commences upon the defect or the deviation becoming apparent. The Customer is responsible for discharging the burden of proof for the fact that all requirements of his warranty claim have been met, in particular the existence of the defect or deviation itself, the moment in time in which the defect or deviation has been identified and the timeliness of the service of the notice of defects. Where the Customer fails to notify us of the defect or deviation within the time limits specified above and in the correct form, the Customer is barred from raising a warranty claim in relation to that defect or deviation, except where Greencells has acted fraudulently in relation to that defect or deviation. Should the Customer refuse to provide us with an opportunity to ascertain a defect, in particular if he refuses to provide us with the items which have been objected or should Greencells be banned from the construction site, all warranty claims are forfeited. Discolorations of modules which do not affect their functionality do not count as a deviation from agreed characteristics and qualities.

Where the Customer instructs Greencells to carry out tests concerning the state and the functionality of components and working materials which he has procured upon delivery at the place of performance (construction site), the Customer must ensure Greencells’ continuous and unhindered access to the delivery which is to be inspected. In the event of a delivery of defective working materials and components, the Customer will be notified by us thereof in writing within four (4) business days.

  1. GC assumes liability for defects of any handcraft and construction-related services as well as planning works or for defects of the working materials and components provided by it which cumulatively meet the following criteria:
  1. The defect represents a breach of the Scope of Works and is specified in the acceptance protocol;
  2. The defect puts the operational capacity of the Project at risk and/or negatively affects the operational capacity of equipment pertaining to the Project;
  3. The defect is not just a minor defect;
  4. The defect could not be discerned upon acceptance; and
  5. The defect does not represent ordinary wear and tear.
  1. The warranty period runs for a period of time of two (2) years following the signing of the acceptance protocol/the delivery note.
  2. GC does not assume any liability and disclaims any warranty for components [including, without limitation, PV modules, inverters, transformer stations and sub-structures (essential components)] for which the manufacturer has provided a warranty where a defect occurs after acceptance. The Customer hereby agrees that the claims and rights which he may acquire in relation to such defective components are contained in the manufacturer warranties which are being assigned to him in accordance with Section 8.5 below and that following the expiry of the warranty period specified in Section 8.1 c) above he is solely responsible for asserting any warranty claims against the manufacturer in question. During the term of the warranty period, GC is obliged to assert the warranties against the manufacturer on behalf and upon request of the Customer. Where GC finds itself unable to assert the manufacturer warranty despite having applied its reasonable endeavours, GC is obliged to return the documents which embody the manufacturer warranty to the Customer.

 

 

2. Additional Warranty

  1. Subject to the provisions set out in Section 8.4 below, GC hereby warrants and represents that upon acceptance/delivery, the performances rendered by GC meet the requirements of the Scope of Works and that
  2. GC has applied a reasonable standard of care in choosing the personnel, working materials and components.

3. Remedy of Defects and Specific Performance

  1. Where GC accepts a warranty claim within the meaning of Section 8.1 in good faith as valid and provided that no provisions to the contrary have been made by way of an Individual Contract or a Variation, GC is obliged to remedy defects at its own expense by way of choosing, in its sole discretion, between repairing, replacing or specific performance of the defective contractual performance.
  2. Except if provided for otherwise by way of a Variation or Individual Contract, GC is entitled to an indefinite number of attempts for specific performance and cure as well as to an indefinite period of time to carry out such attempts, however, at least the amount of time which one may require for such specific performance and cure in good faith, commencing upon the receipt of the respective notice of defects, otherwise any liability for consequences arising from such is excluded in relation to us.
  3. Specific performance and cure require formal acceptance and delivery.
  4. Where specific performance and cure can only be carried out by incurring unreasonable costs, we are entitled to refuse to carry out specific performance and cure. Where Greencells refuses to carry out specific performance and cure, the Customer is entitled to assert his statutory warranty rights, such as the claim for a reduction of the agreed price.
  5. Where the Customer claims damages following a failed attempt of specific performance and cure, any working materials and components which have been delivered according to contract, or, as the case may be, the works itself, remain with the Customer, except where he cannot reasonably be expected to stay in the possession of these.

4. Limitation and Disclaimer of Warranties

Without prejudice to Section 8.1 above, the Customer is not entitled to assert warranty claims which:

  1. Concern the performance or parts of the latter which have been modified, repaired or converted by third parties for which Greencells is not responsible,
  2. Concern the performance or parts of it which do not have been used, operated or maintained by the Customer in accordance with the manual, the manufacturer warranty and/or the operating instructions,
  3. Concern output variations which figure within the tolerances set out on the data sheets of the respective manufacturer warranties,
  4. Concern working materials or components or parts thereof which have been operated, handled or maintained improperly  or which have been exposed to physical or electric impacts or strains or which were the subject of a misuse, abuse or accident or which have been affected by negligent or intentional acts or by Force Majeure, as well as such which
  5. Concern components or parts thereof which have been delivered by an external manufacturer together with a manufacturer warranty for the respective component.

The warranties set out in this Section 8 are the only express or implied warranties given by GC in relation to the Project and these Terms and Conditions, and GC expressly excludes any statutory or other warranties, irrespective of whether these are express or implied rights, to the full extent permitted by law.

5. Manufacturer Warranties, Assignment of Legal Remedies

  1. GC hereby assigns to the Customer all claims arising from a guarantee, warranty and performance bond which it may have against manufacturers of working materials and components in relation to the respective Project of the Customer or which GC may acquire in relation to it to the full extent permitted by law. The Customer hereby accepts the assignment.
  2. GC is obliged to provide the Customer with copies of manufacturer warranties upon request.
  3. The Customer hereby agrees that following acceptance or following the passing of risk by virtue of a termination for cause, he is solely responsible for asserting manufacturer warranty claims at his own expense, even if he instructs GC to do so during the term of the warranty period in accordance with Section 8.1 c) above.
  4. The Customer hereby agrees that the assertion of manufacturer warranty claims depends on the specific content of the respective manufacturer warranty. The Customer in particular acknowledges that the assertion of a manufacturer warranty claim requires strict compliance with all notification, maintenance, return and documentation duties which may exist in relation to the manufacturer in question. The Customer is solely responsible for complying with such notification, maintenance, return and documentation duties as per the date of acceptance.
  5. Where GC is obliged to deliver goods and fails to do so without any fault on its part, GC will assign any rights it may have against a suppliers with whom GC has entered into a congruent transaction to the extent in which the Customer suffered damage and loss on account of GC’S default, and in this case, GC shall provide the Customer with the agreement entered into with GC’s supplier and with any information required for the assertion of the claim against the supplier. The Customer will be informed about the default without delay. Any consideration already given will be reimbursed forthwith.

6. Maintenance and Repair by Third Parties

Where the works owed by GC are being maintained and repaired by third parties following the completion of our performance, the warranties given by GC expires in relation to those parts and components which have been amended by third parties.

Where a third party carries out maintenance and repair works in relation to works/a part of the Project which have been performed by GC, we can only uphold the warranties given by us if the third party in question has been approved by GC as a professionally qualified provider who is able to carry out the works in question.

 

Section 9 Passing of Risk and Limitation of Liability

1. Passing of Risk

a) The risk of accidental damage and loss of items procured by us passes to the Customer upon delivery. If these contractually owed items are being sent or shipped, the risk passes the Customer upon delivery of such items to the courier, shipping company or freight carrier. Should said items get damaged or lost in the course of their transportation, the Customer is obliged to procure a replacement for them without delay if the progress of the construction works depends on the items in question.

b) The risk of accidental damage and loss for works owed by GC passes upon the signing of the acceptance protocol by the Customer. In the case of a termination of an Individual Contract for cause, the respective risk passes upon the termination coming into force.

2. Limitation of Liability

a) We hereby exclude to the maximum extent permitted by law any liability for consequential loss, indirect damage and loss and „Mangelfolgeschäden“, i.e. we only assume liability for damage and loss which  does not occur in relation to items delivered by us in the case of:

(a) intent,

(b) gross negligence of the shareholders / organs / executive employees of Greencells,

(c) culpable causation of physical injuries, damage to health or loss of life

(d) in the case of defects which we have fraudulently concealed or whose absence we have warranted,

(d) for defects in items delivered by us, provided that the Produkthaftungsgesetz [German Strict Liability Act] establishes a liability for damage and loss to privately used items, as well as in the case of

(e) a culpable infringement of material terms of the Individual Contract, and

(f) in the case  of an infringement of merely immaterial terms, GC shall only be liable for intentional acts and gross negligence, except where we are responsible for physical injuries, damage to health or loss of life of the Customer.

c) Where GC cannot be held responsible for an intentional breach of contract, GC’s liability shall be limited to typically foreseeable damage and loss. In the case of gross negligence on the part of non-executive employees and in the case of slight negligence, our liability is limited in time and is limited to such direct, typical average damage and loss which is foreseeable at the moment of time of the conclusion of the contract.

d) Where liability is excluded in relation to us, the same applies in relation to any personal liability on the part of our employees, workers, contributors, agents, for vicarious liability and for Erfüllungsgehilfen [individuals instructed with the performance of our contractual duties, Section 278 BGB]. GC’s liability is also excluded where an Erfüllungsgehilfe which acts on our behalf is responsible for slight negligence. All other claims are excluded.

e) Claims for damages of the Customer are limited to 10% of the value of the part of the delivery or performance which cannot be operated due to the impossibility that occurred. This limitation does not apply in the case of intent, gross negligence and culpable causation of physical injuries, damage to health and loss of life. If not provided for otherwise, any further claims of the Customer are hereby excluded, irrespective of their legal foundation, this shall in particular apply to damage and loss which does not affect the subject matter of the contract / the goods as well as to loss of profit.

 

Section 10 Limitation Period

1. All claims of the Customer - irrespective of their legal foundation – expire within 12 months from the moment in time in which the claim arose or, alternatively, insofar as this is prescribed by statute, from the moment in time in which the Customer acquired knowledge of the circumstances which give rise to such claim, this shall in particular apply to Section 13 Para 4 VOB/B [Verdingungsordnung für Bauleistungen - German Standard Terms for Construction Contracts], which we hereby expressly abrogate, except if expressly provided for otherwise by statute.

2. Claims for damages pursuant to Section 9 are subject to the statutory limitation period.

3. Individual ancillary arrangements are exempt from the limitation period specified above in Para 1 (e.g. warranty bonds which have been granted on an individual basis) which feature individually defined maturities and deadlines.

4. We hereby reduce the limitation period for claims of the Customer pursuant to Section 634 BGB specified in Section 634 a Para I and/or II BGB, to the shortest legally permissible limitation period, which shall amount to a period of time of one year following acceptance at the least.

5. A suspension of the limitation period of the claims of the Customer during negotiations shall only be granted where GC has accepted to take part in such negotiations in writing. Such suspension, granted by way of exception, shall expire within three months following the issue of our last written communication.  

6. Specific performance does not entail a suspension of the limitation period.  

7. The above limitations of the statutory provisions do not apply in the case of physical injuries and damage to health and can only be limited in the case of an infringement of other rights by way of negligence.

 

Section 11 Intellectual Property and Planning Services

1. We reserve all proprietary and intellectual property rights in relation to all images, drawings, calculations and other documentation, including such in electronic format. This shall in particular apply to documentation which has been marked as confidential.

2. Greencells reserves the right to invoice the market value of planning services which the Customer has been provided with prior to the submission of a Fixed Price Offer if the contract volume exceeds €200.000, - and provided that the respective contract has not been awarded to GC and provided that GC can evidence that the project to which the planning services refer has been completed.

 

Section 12 Applicable Law / Place of Jurisdiction

1. These Terms and Conditions and any legal relationship between the Customer and Greencells are governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention for the International Sale of Goods (CISG) as well as those of other legislation relating to the international sale of goods do not apply. The same applies to conflict of law provisions which would entail the applicability of the foreign legal provisions.

2. The exclusive place of jurisdiction for any dispute which may arise directly or indirectly out of or in connection with the contractual relationship between the Parties is Saarbrücken. We are entitled to file a claim against the Customer at his place of jurisdiction. [The place of jurisdiction for Customers which are Vollkaufleute within the meaning of the HGB, legal entities under public law or special asset bodies under public law, the place of performance and place of jurisdiction is the seat of our registered office. Otherwise, the statutory provisions