PV performance GmbH, General Terms and Conditions of sale
- Quotations and Orders
These terms and conditions apply to all quotations made and purchase orders accepted by Seller. They are an integral part of the sales contract between Seller and Buyer. Whenever these terms and conditions conflict with or are expanded or added to by any terms and conditions of Buyer’s order, these terms and conditions shall govern and supersede the terms and conditions of Buyer’s order. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions. Any changes in the terms and conditions of sales contained herein must be specifically agreed to in writing and signed by an authorized officer of Seller before becoming binding on Seller.
- Prices and Payment
Applicable prices are those specified in Sellers quotation or, if the quotation has expired, those specified in Sellers order confirmation, and do not include applicable destination charges or taxes. Seller reserves the right to quote and or adjust prices based on ordering amount. Prices are subject for revision when interruptions, delays, engineering changes, or changes in economic and financial conditions occur after the date of quotation or confirmation over which Seller has no control. Prices are FCA, DE-75417 Muehlacker (according Incoterms 2010) and given in EUR currency. VAT, freight, customs, local taxes and fees are not included and will be added where applicable. Prices and product specifications are subject to change. The shipment will be insured by Seller only at the express request of the Buyer and at the latter’s expense, against theft, breakage, transport, fire and water damage or other insurable risks. The payment conditions are payment in advance within 5 days after receipt of order confirmation and payment notification by proforma invoice. Payment will be required in full prior to shipment. In the event Buyer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay Seller’s invoices as they become due, Seller may cancel any order that is pending and receive reimbursement for its cancellation damages. Payment is made in Euro (EUR). All sales are subject to Seller’s terms and conditions. A late fee of two (2) percent per month will be charged on any late payment.
- Title and Delivery
All sales are FCA, DE-75417 Muehlacker, according Incoterms 2010. The seller fulfills his obligations to deliver when he has handed out the goods, cleared for export, into the charge of the carrier named by the buyer. Urgent orders may be shipped via air express or air freight upon request at Buyers’ expense. Insurance will be provided only at Buyers request and expense. If product is received damaged or lost in transit, Buyer shall be responsible for filling a claim with the carrier. Scheduled shipping dates are estimates only and are subject to delays resulting from causes beyond Sellers reasonable control. Seller is not liable for any special or consequential damages caused by delay in delivery or failure to manufacture or deliver. If shipping dates has been agreed, delivery times and dates refer to the time of delivery to the carrier, freight forwarder or other third party responsible for the transportation.
- Sellers right of possession
Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons of Buyer’s default, to withhold shipments, in whole or in part, and to recall goods in transit, retake some, and repossess all goods which may be stored at Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer’s consents that all products so recalled, retaken, or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit therefore. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller under this contract or law.
- Force Majeure
Seller shall not be liable for any delay or failure to perform its obligations under this contract arising out of causes beyond its reasonable control, including, but not limited to, acts God or public enemy, acts of other parties, acts of civil and military authority, epidemics, unusually severe weather, shortage of power or fuel, strikes, lockouts, boycotts, or other labor troubles, government regulations, or delays of Seller’s subcontractors or suppliers in furnishing materials, tools or supplies due to any one or more of the foregoing causes. In no event shall Seller be liable for any damages to Buyer caused thereby whether direct, indirect, special or incidental.
- Buyers duty to inspect
Buyer must immediately inspect all materials for shortages, conformity with order and defects. If products appear not to conform to the contract between Buyer and Seller, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller of such condition and afford Seller a reasonable time to inspect the same. Claims for shortage of deductions for erroneous charges must be presented within ten (10) days after receipt of the products or such claims will not be allowed.
- Limited Warranty
Product shall be warranted against defects in materials and workmanship for a period of two (2) years from date of shipment. The warranty does not cover minor deviations from the agreed quality or minor impairments to usefulness.
Warranty claims are furthermore excluded if the assembly of the product is not in accordance with the assembly instructions of the manufacturer or PV performance GmbH. It should be ensured that the assembly instructions are in their current version as at the time of delivery.
In the case of material defects to the delivery items, the Seller is obliged and entitled – at its discretion, taken within a responsible timeframe – to initially choose between effecting a repair or a replacement.
A repair is deemed to have been a failure after the second unsuccessful attempt, unless the contrary becomes clear from the nature of the goods or of the defect, or from other circumstances. if the repair attempt fails, i.e. it is impossible, unreasonable or unduly delayed, or if the Seller has refused such an attempt altogether, the Buyer may choose either to demand a reduction of the purchase price or to withdraw from the contract.
The warranty is void if the Buyer modifies the delivery item without Seller’s consent or has it modified by third parties, thus rendering rectification impossible or unreasonably difficult. In any case the Buyer must bear the additional rectification costs incurred as a result of the modification. The Buyer should also note that any guarantees issued by the manufacturer may be inapplicable due to such modifications.
- Exclusions of liability
The Buyer shall not be liable in cases of the ordinary negligence of its executive bodies, legal representatives, subcontractors, employees or other agents, unless it is a case of breach of essentials obligations as obligation to perform the timely delivery if agreed and the timely installation of the delivered item, its freedom from defects that would impair its functionality or suitability for use by more than a merely irrelevant amount, advisory obligations, protections obligations which should facilitate the buyers contractual use of the delivery item or which aim to protect the lives and health of the Buyers personnel or their property object from significant damage.
In case of liability for simple negligence Sellers liability to day damages for property damage and resulting loss of assets is limited to an amount in height of EUR 2 million per claim, even if this concerns a breach of essential contractual obligations.
If the Seller provides engineering services as well as technical information and advices and these engineering services, advices and technical information’s are not part of the contractually agreed scope of services owed by him, then this is done free of charge and to the exclusion of any liability of the Seller.
- Cancellation and Returns
Buyer agrees to accept the quantity of the ordered products designated in the order confirmation. Any cancellation and material return require a written approval by the Seller respective a Return Material Authorization (RMA) prior to return the shipment. Used or installed or modified products, or not packed in the original product packaging, cannot be returned for credit. The cancellation fee / restocking charge is 20 % of the purchased product price.
- Time for bringing Cause of Action, Arbitration
Any action arising under this contract or because of its breach must be commenced within one (1) year after the cause of action accrues. Any such action shall be settled by arbitration in Germany, Stuttgart. Mandatory statutory provisions regarding exclusive jurisdiction remain unaffected by this regulation. This quotation, order confirmation, or invoice, including these terms and conditions and all attachments and documents incorporated by reference herein are exclusively subject to the laws of the Federal Republic of Germany to the exclusion of the provisions of private international law. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
- Design, Dimensions and Weight
Seller reserves the right to change designs without notice to Buyer, unless otherwise agreed upon. Seller will incorporate in products such reasonable engineering changes to continuously to improve products or processes. Seller will notify Buyer of any engineering changes affecting form, fit or function of the product. Weights and dimensions published are approximate and sufficiently accurate for most uses. If the approximate weights and dimensions are insufficient for Buyer’s purposes, buyer should obtain certified prints where exact weights and dimensions are critical.
Except as specifically provided herein, this contract shall not be terminated or amended by Buyer without Seller’s prior written consent. If Seller consents to termination of or amendment to this contract, Buyer, at Seller’s discretion, shall be liable for all charges, including without limitation, a price adjustment based on the quantity of goods actually delivered, and all costs direct and indirect, incurred and committed for this contract, together with reasonable allowance for prorated expenses and anticipated profits.
No change to this contract will be binding on Seller unless made in writing and assigned by an authorized officer of Seller. No field representative or anyone other than an authorized officer of Seller has authority to sign such a writing.
The Buyer is aware that the Seller stores data arising from the contractual relationship under section 28 of the German Federal Data Protection Act for the purpose of data processing, and reserves the right to furnish third parties (e.g. subcontractors, suppliers) with the data to the extent that this is necessary to fulfill the contract.
The term “Seller” as used herein shall mean PV performance GmbH. The term “Buyer” as used herein shall mean the Customer to whom the order was quoted and accepted.