General Terms and Conditions of Sale and Delivery of SOLIDpower GmbH

I.    Applicability

The following General Terms and Conditions of Sale and Delivery are deemed an integral part of any purchase contract made between SOLIDpower and the Buyer for supply and delivery of SOLIDpower commercial products for resale to end customers. Any terms and conditions of Buyer are not deemed to become a part of such contract.

 

II.    Incoterms

Unless otherwise stated in order confirmation, supply and delivery of products to the Buyer are ex works as per ICC Incoterms 2020.

 

III.    Written Form

All agreements between the parties must be in writing to be valid. This includes any agreement to waive the requirement of written form.

 

IV.    Offset and Withholding

The Buyer is only entitled to offset claims if the counterclaims have been finally decided by a court of law, are undisputed or are in direct mutual relationship to the purchase price claims from which they are being offset (e.g. damage-compensation claims). The Buyer is only entitled to withhold payment if this is based on the same legal grounds.

 

V.    Delivery dates / Delay in Delivery

  1. The delivery period is based on the agreements made between the parties. SOLIDpower being able to meet a delivery date requires that all business and technical questions between the parties have been clarified and the Buyer has met all requirements of public-authority directives or permits or has made a down payment. If not, the delivery period will be deemed to extend for a reasonable period. The delivery period is deemed to have been observed if the delivery item has arrived at the agreed place of delivery on the agreed date. If the Buyer or a third party appointed by it to receive the goods is not present upon delivery and cannot accept the product, SOLIDpower will have the right to store the item at the cost of the Buyer.

  2. If SOLIDpower cannot deliver the product within the agreed time, it will notify the Buyer. If the inability to deliver is due to force majeure, labor conflict or other circumstances which are beyond the control of SOLIDpower, the delivery period is deemed to extend to a reasonable extent. SOLIDpower will notify the Buyer as soon as possible concerning the start and end of such circumstances.

  3. In the event of delay in delivery SOLIDpower will only be liable to the limited extent of those damages which could have been foreseeable and are typically foreseeable in contracts of the type. Liability is further limited to a lump-sum damage-compensation of 0.5% of the value of the supplied goods for each complete week in which delay continues, up to a maximum of 5% of the value of the supplied goods. These limitations will not apply if the delay in delivery is due to grossly negligent actions or intentional breach of contract by SOLIDpower.

  4. If the shipping or acceptance upon delivery of the supplied product is delayed for reasons for which the Buyer is at fault, the Buyer will be charged any costs incurred due to this delay, beginning one month after the notification that product is shipped or ready for final acceptance.

VI.    Manufacture in accordance with Buyer specifications / Use in connection with third-party products

If the sold products are made in accordance with specifications of the Buyer or will be used by Buyer in connection with products which were not made by SOLIDpower, the Buyer must indemnify SOLIDpower from any and all claims of third parties directed against SOLIDpower as well as losses, expenses or other detriment including attorney costs incurred by SOLIDpower resulting from such manufacture in accordance with specifications or use by Buyer. All tools, materials, models and devices used for manufacture of a product in accordance with specifications of Buyer remain the property of SOLIDpower.

 

VII.    Defect Warranty Claims

  1. The Buyer is obligated to examine the product immediately upon arrival for any recognizable defects and to inform us of any such defects without delay. In the event of defects which only later become recognizable the Buyer must inform us of these in writing immediately upon their discovery. If not, the product will be deemed to have been approved/accepted.

  2. Our warranty obligation for defects consists of our choice of either removing the defect or sending a replacement delivery. The Buyer must provide us sufficient opportunity to remove the defect within a reasonable time; otherwise we are released from liability for any resulting consequences. Only in urgent cases, e.g. to ensure safety of Buyer's business site or to avoid disproportionately greater damages, is the Buyer allowed to remove defects itself or through third parties after prior consultation with us and to subsequently charge us for the expenses. Any replaced parts must be returned to us in all events.

  3. If it is finally not possible to remove the defect/provide replacement, the Buyer may reduce the payment or (unless the defects are trivial) may withdraw from the contract.

VIII.    Liability (Damage Compensation)

  1. In cases of simple negligence of acts of its supervisory/executive bodies, representatives, employees or vicarious agents, SOLIDpower will only be liable in the event this represented breach of a cardinal contractual obligation. A cardinal obligation is one which makes proper fulfillment of the contract possible in the first place and which the buyer may and does regularly expect to be fulfilled.

  2. SOLIDpower is liable for any and all gross negligent breach of contract or for breach of cardinal obligations of contract where this is due to simple negligence. However, the liability is limited to those damages which SOLIDpower would have been able to foresee as a possible consequence at the time of entering into the purchase agreement and which is typically foreseeable for the type of contract.

  3. SOLIDpower will be liable without limitation under law for acts of intent, for damages to life, limb and health, under product liability laws, in cases of fraudulent misrepresentation/non-disclosure of a defect as well as in cases of guarantees given, in as far as the Buyer has fulfilled its obligation to cooperate under the agreement.

  4. All other liability of SOLIDpower is excluded. SOLIDpower in particular will not be liable for damages caused by improper operation, treatment or servicing of the product, wrong information given to SOLIDpower, failure to secure data or not to the extent required, non-observance of conditions for installation and setting up the product, use of improper operating materials, chemical, electro-chemical or electrical influences etc, where SOLIDpower is not at fault for these.

  5. In as far as SOLIDpower's liability is excluded or limited, this shall also apply for personal liability of its management, employees, colleagues, representatives or vicarious agents.

IX.    Retention of Title

  1. Up until all payments due from the Buyer to us on the basis of the contract concerning the delivered goods (goods under reservation of title) have been received, such goods remain our property. In the event of breach of contract by the Buyer, e.g. default of payment, we will set out a reasonable period for remedy, and if the circumstance is not remedied in that time we will withdraw from the contract and the goods under reservation of title will be returned to us by the Buyer. Our acceptance of return of the goods in this case will represent withdrawal from the contract. If we place a lien on the goods under reservation of title, this will represent withdrawal from the contract. We are entitled to further exploit the product after its return and acceptance by us. Compensation obtained by us in the further exploitation of the product – minus a reasonable amount for costs of depreciation – will be offset from the payment due to us.

  2. The Buyer is obligated to handle the product with care and to insure it at Buyer's own cost against fire, water and theft at the market value. If maintenance and inspection work is required, the Buyer must have this carried out at its own cost and within proper time periods.

  3. The Buyer is entitled to sell the product in proper commerce and/or exploit it as long as the Buyer is not in default of payment. It may not be used as collateral in liens or securities. As security against payment, at this time the Buyer herewith assigns in full to us any claims it may derive in future arising from further sale of the product or based on other legal grounds involving it, in particular due to the product subject to retention of title being merged with real property or a building construction; we herewith accept such assignment. We authorize the Buyer, subject to revocation, to collect such claims assigned to us for its own account and in its own name. This authorization to collect claims may be revoked at any time, if the Buyer has not properly fulfilled its payment obligations. The Buyer may not further assign this claim, not even for purposes of claim collection through a factoring company, unless the factoring company is also subject to the same obligation to ensure compensation is directly owed to use for as long as we may have outstanding claims against the Buyer.

X.    Limitation Period

  1. All claims of Buyer – on whatsoever legal basis – will expire 12 months after commissioning of the product. In the event of intent (including fraudulent misrepresentation) or gross negligence, or injury to life, limb or health as well as for claims under product liability laws, the statutory limitation periods will apply.

  2. The provisions of §§ 478, 479 BGB also remain unaffected by these provisions.

XI.    Software Use

  1. To the extent that the delivered goods include software, the Buyer is granted a non-exclusive right to use such delivered software including its documentation. The grant of software use is for use only on the product delivered and for which the software is intended. Use of the software on more than one system is prohibited.

  2. The Buyer may only make copies of the software, rework it, translate it or convert it from object code into source code  to the extent allowed by law (§§ 69a et seq. of UrhG – Copyright Law). The Buyer agrees not to remove or alter manufacturer data – in particular copyright notices – without the prior express consent of SOLIDpower.

  3. All other rights to the software and documentation including copies remain the property of SOLIDpower and/or the software supplier. Sub-licenses may not be granted.

XII.    Confidentiality

  1. Both parties agree to confidentiality, in particular regarding price agreements. They agree to subject any third parties which they may involve in carrying out the project to the same agreement of confidentiality.

  2. This confidentiality agreement applies to all business and operating secrets of which the parties become aware or are informed of either orally or in writing  as well as any other information in connection with the project, regardless of in what form or on what type of data medium this may be (hereinafter the "Information"). The following is considered confidential:
    • know-how, unpublished intellectual property and work results obtained in the course of the contract/order;
    • description of the project and the specifications sheet;
    • schedules, targets and ideas for carrying out the project;
    • other and/or any Information not made public, which one party may obtain in the course of the project, in particular cost tables, drawings, work documents, samples, models, building components, circuits, prototypes, etc, as well as Information on concepts, work methods, manufacture, new developments, improvements etc.
  3. The parties agree to keep the Information strictly confidential and not to disclose it or make it available to any third party, unless such is necessary for the planning and execution of the project. Each party is obligated to take all necessary measures which might reasonably be expected to ensure that this confidentiality agreement is observed.

  4. The Information may otherwise only be disclosed to those persons, institutes, institutions, subcontractors or suppliers who are necessary for the planning and execution of the project and who must be obligated in writing to confidentiality as per this confidentiality agreement. Upon request, each party must immediately provide information concerning the confidentiality agreements made with such persons or companies and submit copies of the confidentiality agreement document.

  5. This confidentiality obligation will not apply to Information for which the recipient of the Information can prove that the Information was already know to the recipient party or was public knowledge or accessible by the public. Each instance of culpable violation of this confidentiality obligation will incur a contractual penalty of € 10,000. The right to assert further damage compensation claims remains unaffected thereby.

  6. This confidentiality obligation will continue in force once the business relation between the parties has ended, regardless of whether agreement has been terminated, for as long as one of the parties has a justified interest in the confidentiality.
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    XIII.    Data Protection

    Any personal data submitted by the Buyer will be treated in accordance with the German laws on data protection (German Federal Data Protection Act – Bundesdatenschutzgesetz).

     

     

    XIV.    Applicable Law / Place of Jurisdiction

    1. For all legal relationships between SOLIDpower and the Buyer, solely the laws of the Federal Republic of Germany will apply, ousting the CISG.

    2. Sole place of jurisdiction for all disputes arising from or in connection with this Agreement is Aachen, Germany. SOLIDpower however may also file action at the main business seat of the Buyer.
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