General terms of sales, delivery and payment
of Ritter XL Solar GmbH (RXL)

1. Scope

1.1. These Terms and Conditions of Sale apply for any and all business transactions between Ritter XL Solar GmbH (hereinafter referred to as „RXL”) and the Buyer, even if not expressly mentioned in later contracts. They apply accordingly for work performances and services. The taking of the delivered goods shall be replaced in case of work performance by acceptance of work and in case of services by receipt of the service.

1.2. Any terms and conditions of the Buyer conflicting with, in addition to, or deviating from these Terms and Conditions of Sale shall not form subject matter of the contract unless RXL expressly consented to their applicability in writing. These Terms and Conditions of Sale shall also apply in case RXL unconditionally makes delivery to the Buyer, having knowledge of its conflicting or deviating terms and conditions.

1.3. Any agreements entered into between RXL and the Buyer for the performance of a contract in addition to or deviating from these Terms and Conditions of Sale must be put down in writing in the contract. This shall apply accordingly for the waiver of this written form requirement.
1.4. Rights that RXL is, beyond these General Terms and Conditions of Sale, entitled to pursuant to legal provisions remain unaffected.

2. Conclusion of the Contract and Changes to the Contract

2.1. Quotations are subject to change and nonbinding.

2.2. Illustrations, drawings, weight, dimension, performance, and consumption specifications as well as any other descriptions of the products in the documents belonging to the quotation are only decisive as approximations unless they are expressly indicated as binding. They do not constitute an agreement or guarantee as to certain characteristics of the products.

2.3. RXL reserves ownership, copyrights, and any other industrial property rights to all quotation documents. These documents must not be made available to third parties.

2.4. Orders are not binding until they have been confirmed by RXL in a written order confirmation or until RXL supplies the products. An order confirmation created by means of automatic appliances and lacking signature and name is considered a written order. Silence of RXL as to quotations, orders, requests, or other statements of the Buyer shall be deemed approval only if this was expressly agreed in writing. To the extent the order confirmation contains obvious mistakes, typing or calculation errors, it is not binding for RXL.

3. Scope of Delivery

 

3.1. The written order confirmation of RXL is authoritative for the scope of delivery. Changes to the scope of delivery require the written confirmation of RXL to be effective. The products are subject to design and form modifications to the extent the changes are not significant and are reasonable for the Buyer.
3.2. Partial deliveries are permissible.

4. Delivery Time

4.1. Delivery periods and dates must be agreed in writing and are non-binding unless they are expressly indicated as binding.

4.2. The delivery period begins when the order confirmation is sent by RXL, however not before the Buyer has furnished all documents, approvals, and releases required of it, all technical matters have been clarified and an agreed down-payment has been received. The delivery period can only be met if the other obligations of the Buyer have been fulfilled timely and duly.

4.3. The delivery period is deemed met if until its expiration, the products have left the factory or RXL has communicated the shipping readiness or the readiness for collection. All delivery dates are subject to timely and proper self-supply of RXL.

4.4. In case of delay in delivery, the Buyer is entitled to rescind the contract after a reasonable grace period has elapsed which it has set RXL upon commencement of the delay in delivery.

4.5. If RXL has concluded a framework contract on future deliveries with fixed delivery dates with the Buyer and the Buyer does not call the products on time, RXL is entitled, after a reasonable grace period has elapsed, to deliver and bill for the products, rescind the contract, or claim damages in lieu of performance or compensation of expenses. The claim for damages or expenses shall only apply if the Buyer acted culpably.

5. Passing of Risk

5.1. The risk of accidental loss and accidental deterioration shall pass to the Buyer as soon as the products are handed over to the person responsible for transport or have left RXL's warehouse for shipping. In case the Buyer collects the products, risk shall pass to the Buyer upon handing over the products. Sentences 1 and 2 also apply in case of partial deliveries or if RXL has agreed to perform further services such as assumption of transport costs or installation of the products at the Buyer's premises. Upon the Buyer's written request and at the Buyer's costs, RXL will have the products covered by transport insurance against risks to be named by the Buyer.

5.2. If the Buyer falls into default in accepting the products or if it violates any other obligations to co-operate, RXL is entitled to demand the compensation of the resulting damage including any additional expenses. The risk of accidental loss or accidental deterioration of the products shall pass to the Buyer at the time specified in No. 5.1. In case the Buyer falls into default in accepting the products earlier, risk shall pass to the Buyer at the time when the Buyer falls into default of acceptance. RXL is entitled to otherwise dispose of the products after the unsuccessful expiry of a reasonable grace period and to supply the Buyer within a reasonably extended period.

5.3. Should shipping be delayed due to circumstances beyond the control of RXL, the risk shall pass to the Buyer upon communication of the shipping readiness.

5.4. The delivered products must be accepted by the Buyer, without prejudice to its claims based on defects, even if they have minor defects.

6. Prices and Payment

6.1. All prices are ex works unless otherwise agreed, however exclusive of packaging which will be invoiced separately. The prices are exclusive of statutory VAT which will be shown separately in the invoice as applicable on the invoice date.

6.2. On orders with a net order value of less than € 100.00, RXL will charge a handling fee of € 40.00 plus VAT.

6.3. Orders without expressly agreed fixed prices will be billed at RXL's list prices valid on the day of delivery. The entry of the list price valid on the day the order is placed in an order form or order confirmation shall not be considered an agreement of a fixed price. If production-related price increases occur by the delivery date, RXL is entitled to adjust the price accordingly without taking the quotation and order confirmation into consideration.

6.4. Unless otherwise agreed, the delivery price must be paid net without deductions within 30 days from the date of invoice. The date of payment is considered the day RXL is able to dispose of the delivery price. If the Buyer defaults payments, it must pay default interest of 8 percentage points above the respective base interest rate p.a. The assertion of further claims shall not be precluded.

6.5. In case of international transactions, payment shall take place in derogation of No. 6.4 prior to delivery unless otherwise agreed in writing.

6.6. Counterclaims may be set off by the Buyer only if determined in a legally final manner or are unchallenged. A right of retention may be exercised by the Buyer only insofar as its counterclaim is based on the same legal relationship.

7. Claims based on Defects and Liability

7.1. The Buyer shall be entitled to assert claims based on defects only if it has examined the delivered products upon receipt and has reported defects to RXL in writing without delay, however no later than two weeks after receipt of the products. Hidden defects must be reported to RXL in writing without delay after their discovery. When reporting the defects to RXL, the Buyer shall describe them in writing.

7.2. In the event of defective products, RXL shall at its own choice render subsequent performance either by removing the defect or by delivering a Contract Product free of defects. In case of subsequent performance, RXL shall be obligated to bear all expenses required to render subsequent performance, in particular transport costs, tolls, personnel, and material costs, unless such expenses are increased due to the fact that the products were shipped to a place other than the delivery address. Costs for personnel and material asserted by the Buyer in this context shall be invoiced at cost price. Replaced parts pass into the ownership of RXL and shall be returned to it.

7.3. In case RXL is not prepared or able to subsequently perform, the Buyer may, notwithstanding any claims for the redress of damages or outlays, at its own choice either rescind the contract or reduce the delivery price. The same shall apply in case the subsequent performance fails, is unreasonable for the Buyer or is unreasonably delayed for reasons attributable to RXL.

7.4. The right of the Buyer to rescind the contract is excluded if the Buyer is unable to return the performance received and this is not due to the fact that return is impossible due to the nature of the performance received, RXL is responsible for it, or the defect was not revealed until the product was processed or modified. The right to rescind is also excluded if RXL is not responsible for the defect and if RXL must compensate the value instead of returning the performance.

7.5. The right of the Buyer to rescind the contract is excluded if the Buyer is unable to return the performance received and this is not due to the fact that return is impossible due to the nature of the performance received, RXL is responsible for it, or the defect was not revealed until the product was processed or modified. The right to rescind is also excluded if RXL is not responsible for the defect and if RXL must compensate the value instead of returning the performance.

7.6. Claims of the Buyer for redress of expenses instead of damages in lieu of performance are excluded unless they would also have been made by a reasonable third party.

7.7. RXL is fully liable for damages resulting from an infringement of a guarantee or from injury to life, body, or health. The same applies for intent and gross negligence. RXL is liable for slight negligence only if material obligations are violated which result from the nature of the contract and which are particularly important for attaining the purpose of the contract. If such obligations are violated, or in cases of delay and impossibility, the liability of RXL is limited to damages which can be expected to typically occur within the context of this contract. Statutory liability for product defects remains unaffected.

7.8. The limitation period for claims based on defects asserted by the Buyer is one year. This shall not apply in case in case the defective products were used in line with their regular purpose for building construction and caused that building's structural defect. This limitation period shall also applies for claims in tort based on a defect of the product. The limitation period shall begin to run from the delivery of the products. The liability pursuant to No. 7.7, in particular the unlimited liability of RXL for damages resulting from violation of a guarantee or from injury to life, body, or health, for intent and gross negligence, and for product defects remains unaffected. Any comment of RXL on a claim based on defects asserted by the Buyer shall not constitute an entry into negotiations on such claim or on the facts giving rise to the claim, provided that RXL rejects the claim based on defects to the full extent.

7.9. To the extent that liability of RXL is excluded or limited, this shall also apply in respect of the personal liability of the salaried employees, staff members, representatives, and auxiliary persons of RXL.

8. Retention of Title

8.1. RXL retains title to the delivered products until any and all claims that RXL is entitled to against the Buyer and that result from the business relationship have been fully paid. For the duration of the retention of title, the Buyer shall handle the products subject to retention carefully. It shall in particular sufficiently insure the retained products at its own expenses at replacement value against fire, water and theft damage. The Buyer shall provide evidence of the insurance to RXL at the latter's request. The Buyer shall assign to RXL, with effect as from today, all claims for compensation in connection with such insurance. RXL herewith accepts such assignment. If the insurance agreement does not allow for such assignment, the Buyer herewith instructs the insurance company to make any payments to RXL only. Any exceeding claims of RXL shall remain unaffected.

8.2. Products subject to retention may only be resold by the Buyer in the ordinary course of business. The Buyer shall not be entitled to pledge the products subject to retention, to transfer them by way of security, or to otherwise dispose of them in a way endangering title of RXL. The Buyer shall immediately notify RXL in writing of any attachment or any other intervention by a third party, provide all information required, inform the third party of the title of RXL, and assist in all measures of RXL in order to protect the products subject to retention. To the extent the third party is not able to reimburse RXL the costs for the enforcement of RXL's title to the products subject to retention, the Buyer shall be liable for the loss sustained to RXL.

8.3. The Buyer assigns to RXL, with effect as of today, all claims in connection with the resale of the products with any and all ancillary rights, irrespective of whether the products subject to retention were resold prior or after processing. RXL accepts such assignment with effect as of today. If such assignment is not permissible, the Buyer herewith instructs the third party debtor to make payments to RXL only. The Buyer shall be revocably authorized to collect the claims assigned to RXL in trust for RXL in the Buyer's own name. The amounts collected shall be transferred to RXL immediately. RXL may revoke the Buyer's authorization for collection and resale for cause, in particular if the Buyer does not duly meet its payment obligations vis-à-vis RXL, defaults or ceases payment, or if a request for the opening of insolvency proceedings or similar debt settlement proceedings over the assets of the Buyer has been filed. In case of a blanket assignment by the Buyer, the claims assigned to RXL shall expressly be exempted.

8.4. In case the Buyer is in delay of payment, RXL shall, without prejudice to its further rights, be entitled to rescind the contract after a reasonable grace period has elapsed. The Buyer shall immediately grant RXL or its authorized agents access to the products subject to retention and return them. After due and prior notice, RXL may realize the products subject to retention in order to satisfy its claims against the Buyer.

8.5. The processing or reconstruction of the products subject to retention by the Buyer shall always be made for RXL. The Buyer's expectancy right to the products subject to retention shall also apply to the processed or remodelled item. Should the products be processed or remodelled together with other objects not belonging to RXL, RXL shall gain joint title in the new item in the proportion of the value of the delivered products to the other processed objects at the time of such processing or reconstruction. The same shall apply in case the products are connected or mixed with other objects not belonging to RXL in such manner that RXL loses ownership. The Buyer shall keep the new objects for RXL. In all other regards, the same is deemed to apply for the item created through processing or reconstruction as well as connection or mixing as for the delivered products subject to retention.

8.6. In case the realizable value of the securities, taking into account usual valuation adjustments by the banks, exceeds the claims of RXL arising from the business relationship with the Buyer by more than 20%, RXL shall at the Buyer's request be insofar obligated to release the securities RXL is entitled to. The valuation should be based on the invoice value of the products subject to retention and on the nominal value of the claims.

8.7. In case of delivery to other legal systems in which this provision of retention of title does not have the same retaining effect as in the Federal Republic of Germany, the Buyer hereby grants RXL a corresponding security interest. Where further measures are required for this, the Buyer will do everything required to grant RXL such security interest without delay. The Buyer shall take part in all measures being necessary and conducive for the effectiveness and enforceability of such security interests.

9. Product Liability

9.1. The Buyer undertakes not to change the products; in particular, it will not modify or remove existing warning notices for risks due to improper handling of the products. In case of breach of this undertaking, the Buyer shall internally indemnify RXL from and against any and all product liability claims of third parties unless the Buyer is not responsible for the defect causing the liability.

9.2. In the event RXL is caused to call back products or send a warning notice due to a defect in the products, the Buyer shall use its best efforts to support RXL and take part in all reasonable measures that RXL deems reasonable and appropriate; in particular, the Buyer will establish the necessary customer information. The Buyer shall bear the costs for the product recall or warning notice unless it is not responsible for the defect in the products and the loss occurred according to the principles of product liability laws. Further claims of RXL shall remain unaffected thereby.

9.3. The Buyer will inform RXL in writing without undue delay about all possible risks in connection with the use of the products that become known to it and any possible defects in the products.

10. Force Majeure

10.1. In case RXL is hindered by force majeure from the fulfillment of its contractual duties, in particular from the supply of the products, RXL shall, for the duration of the hindrance and a reasonable restart time, be released from its duty to perform without being obligated to pay damages to the Buyer. The same shall apply if the fulfillment of the obligations of RXL is unreasonably impeded or temporarily impossible due to unforeseeable circumstances beyond the control of RXL, in particular due to strike, measures of public authorities, lack of energy, difficulties in supply on the part of a sub-contractor, or material interruptions of operation. This also applies if RXL is already in default or if such circumstances occur on the part of a sub-contractor. To the extent RXL is released from its obligation to supply, RXL will grant back preliminary performances of the Buyer as may have been made.

10.2. RXL shall be entitled to rescind the contract after a reasonable grace period if such hindrance continues for more than four months and the performance of the contract is no longer of interest to RXL due to such hindrance. Upon request of the Buyer and after expiration of the period, RXL will declare whether it will exercise its right of rescission or will deliver the products within a reasonable period.

10.3. The Parties will mutually agree on whether, after the termination of such hindrance, a subsequent delivery shall take place for the deliveries that did not take place during this period.

11. Confidentiality

The Parties undertake to keep confidential for an unlimited period all information that becomes known to them and that is indicated confidential or is in other circumstances identifiable as business or trade secrets, and, unless this is necessary for the business relationship, to neither record nor hand on nor exploit it. By appropriate binding agreements, the Parties will ensure that the employees and agents acting on their behalf neither record without authorization nor hand on nor unauthorizedly exploit such business and trade secrets for an unlimited period.

12. Final Clause

 

12.1. The transfer of rights and obligations of the Buyer to third parties requires the written consent of RXL to be legally effective.

12.2. The business relationship between the Buyer and RXL shall be governed by and construed in accordance with German laws to the exclusion of the United Nations Sales Convention (CISG).

12.3. Exclusive venue for any and all disputes arising out of or in connection with the business relationship between RXL and the Buyer shall be the statutory seat of RXL. RXL shall also be entitled to bring an action at the Buyer's statutory seat and at any other permissible venue.

12.4. Place of performance for all obligations of RXL and the Buyer shall be the statutory seat of RXL.

12.5. Should an individual provision of this contract be or become ineffective or unenforceable in whole or in part, or should this contract contain a regulatory gap, the validity of the remaining provisions shall not be affected thereby. Instead of the ineffective or unenforceable provision, the effective or enforceable provision shall be deemed to be agreed which comes as close as possible to the economic purpose of the ineffective or unenforceable provision. In case of a regulatory gap, the provision shall be deemed to be agreed which corresponds to the provision that would have been agreed in terms of the object of this contract if the Parties had considered the matter.