General Terms and Conditions
- Scope of these Terms and Conditions
- Offers and Conclusion of Contracts
- Prices and Payment Terms
- Delivery and Delivery Times
- Obligations of the Customers
- Transfer of Risk
- Retention of Title
- Changes of Construction
- Use of Software
- Rescission Right
- Right of Revocation
- Information regarding Data Protection
Scope of these Terms and Conditions
- Our deliveries, services and offers are solely based on these terms and conditions (hereinafter referred to as “General Terms and Conditions”) and these General Terms and Conditions apply to all contracts with our customers.
- All agreements concluded between you and us in connection with the contract result in particular from these General Terms and Conditions, our offer or our written order confirmation and our declaration of acceptance.
- We do not accept any deviating terms and conditions of the customer and hereby expressly object to them.
- All agreements made between the customer and us in connection with the consummation of this contract, shall be made in writing, e.g. via telefax or email (but not via SMS or WhatsApp or other comparable messengers).
- The terms and conditions shall apply regardless whether you are consumer, entrepreneur or a businessman (Kaufmann), unless otherwise separately regulated below by the introduction “Entrepreneurs:” or “Consumers:”.
- The version of the General Terms and Conditions valid at the time of conclusion of the contract shall apply.
Offer and Conclusion of Contracts
- The presentation and advertising of projects in our catalogues or brochures does not constitute a binding offer to conclude a contract, but an invitation to you to order the services described in the catalogue.
- Likewise, our offers are subject to change and non-binding. With the sending of an order by fax or email you submit a legally binding offer to us. You shall be bound by this offer for a period of two (2) weeks after submission of the order, which shall be the date of receipt by us by fax or email. Your right to revoke your order, if any, pursuant to Section XIII shall remain unaffected.
- A contract shall only be concluded upon receipt of our written order confirmation, e.g. by fax or email (but not by SMS or WhatsApp or comparable messengers). The orders placed by the customers are binding for a period of two weeks after receipt by us and can be accepted by us within this period. For compliance with this acceptance period, the receipt of the acceptance by the customer is required.
- The services to be rendered are conclusively set out in our order confirmation. In the event of changes to services, additional services or other changes to the content of the contract which are to be effectively agreed between the parties, we shall submit a corresponding supplementary offer to the customer. Unless otherwise agreed in writing, the services shall be provided in the originally agreed form until the customer accepts the supplementary offer.
- Our employees are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the order confirmation sent in writing in accordance with Section 4 Paragraph 4.
- We expressly point out that certain module types and/or inverter types are only supplied to us by our suppliers on the basis of monthly quotas and that it may therefore occur that a certain module or inverter type specified in the offer is not available. In this case, we will inform the customer immediately and offer to replace the module or inverter type that cannot be delivered or cannot be delivered on time with an equivalent product from another manufacturer. A corresponding change – including any price change – requires the express consent of the customer. As long as the customer does not agree to a change, our performance obligations under the contract shall be suspended and any agreed delivery periods shall be extended.
- the “economic efficiency calculator” available on our website and/or any project report provided with a non-binding economic efficiency calculation serve only as a rough and non-binding estimate of the economic efficiency of a photovoltaic system. These cannot replace a detailed examination by our experts. Any calculation is subject to the proviso that the legal framework conditions remain unchanged, including the compensation rates according to the “Renewable Energy Sources Act” (EEG). We expressly point out the risk that the legal framework conditions can be changed at any time.
- We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents – also in electronic form. This applies in particular to such documents which are designated as “confidential”. The customer must obtain our express written consent before using them or passing them on to third parties.
Prices and Payment Terms
- Prices and terms of payment result in each case from our order confirmation.
- The agreement of any cash discount shall only be effective if it has been made in writing, e.g. by fax or e-mail (but not by SMS or WhatsApp or comparable messengers).
- The statutory regulations concerning the consequences of default in payment shall apply.
- The customer shall only be entitled to set-off rights if his counterclaims have been legally established or are undisputed. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
Delivery and Delivery Terms
- Delivery dates or deadlines are only binding if they are confirmed by us in writing, e.g. by fax or e-mail (but not by SMS or WhatsApp or comparable messengers). If the customer defaults on a payment obligation, these delivery dates and deadlines shall be extended accordingly to the day. In the event that a fixed delivery date has been agreed in accordance with these provisions, we shall only be in default after the expiry of a period of four (4) weeks after the agreed delivery date, and the customer may only assert rights due to delayed delivery if this four-week period is not complied with.
- All delivery dates or deadlines are subject to correct and timely self-delivery by our suppliers. This shall not apply if we are responsible for the non-delivery, untimely delivery or incorrect self-delivery. The customer will be informed immediately of the non-availability or late availability of the service.
- In addition, delivery dates or deadlines shall be extended in the event of access impediments at the installation site as well as in the event of delays due to restrictions on installation by the period of time during which we were impeded in the performance of services due to installation impediments. Any loss of use or additional costs resulting from this shall be borne by the customer. This shall not apply if we are responsible for the impediment to assembly. We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us, not only temporarily – this includes in particular strikes, lockouts, official orders, etc., even if they occur at our suppliers or their subcontractors or at other third parties commissioned by us to fulfil our contractual obligations – even in the case of bindingly agreed delivery periods and dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
- If the impediment lasts longer than two months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery or performance time is extended in accordance with the aforementioned provisions in Section IV or if we are released from our obligation, the customer may not derive any claims for damages from this. We may only invoke the aforementioned circumstances if we notify the customer thereof without undue delay after becoming aware of them.
- If we are responsible for non-compliance with bindingly agreed delivery dates and deadlines or are in default, our liability shall be limited to half a percentage of the invoice value (excluding VAT) of the deliveries and services affected by the default for each full week of the default, but to a maximum of five percent of the invoice value of the deliveries and services affected by the default. Any further claims shall be excluded unless the delay is due to intent or gross negligence on our part.
- We shall be entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is unreasonable for the customer.
- if the customer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred by us; notwithstanding the provision in Section VI, the risk of accidental deterioration and accidental loss shall pass to the customer upon occurrence of the default of acceptance.
Obligations of the Customers
- Unless expressly agreed otherwise in writing, the customer shall be solely responsible for obtaining and applying for the permits, approvals and consents required for the construction of the photovoltaic system and its ancillary equipment as well as for the grid connection and operation of the photovoltaic system, and for making all notifications to the grid operator and the Federal Network Agency. The fees or grid connection costs as well as other costs charged by the electricity/ or distribution grid operator responsible at the installation site in connection with the commissioning and the grid connection and/or the operation of the photovoltaic system or for the billing of feed-in proceeds or for other services shall be borne by the customer.
- The customer shall grant us and our agents unhindered access to the roof areas and parts of the building in or on which the photovoltaic system and its ancillary systems (e.g. modules, inverters, energy storage systems) are to be installed. In addition, the customer shall ensure on his own responsibility that any scaffolding required for the installation can be erected.
- We shall be entitled to interrupt the work if environmental hazards or significant construction risks arise during the project planning or installation that prevent the order from being executed in accordance with the contract, for example due to a breach of statutory regulations. If possible, in such a case we will provide the customer with an offer to remove the project impediments.
- Our order confirmation is subject to the positive network compatibility test of the local network operator.
- The customer assures that the property on which the photovoltaic system is to be installed is free of any requirements under monument protection law. The customer shall procure any required approval under monument protection law at its own expense prior to installation.
- The customer is responsible for checking the statics.
Transfer of Risk
Subject to the regulations in Section IV para. 8, the risk of accidental loss or deterioration passes to the customer with the handover of the photovoltaic system, but the latest with the connection of the photovoltaic system to the power grid.
- Discolorations of photovoltaic modules that do not impair their functionality are not considered a material defect.
- Entrepreneurs: Claims for defects on the part of the customer presuppose that the customer has duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).
- If the photovoltaic system is defective, we shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the case of rectification of the defect, we are obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs.
- If the subsequent performance fails after the second attempt, the customer shall be entitled to a reduction. In this case, withdrawal from the contract by the customer is excluded, unless we act with malice or intent.
- Unless otherwise stipulated in our offer or in the order confirmation, the limitation period for claims for defects shall be 2 years, calculated from the transfer of risk.
- All references in our order confirmations to manufacturer’s warranties do not imply any limitation of the warranty claims beyond the above limitations, but merely a reference to additional rights against the manufacturer, which we forward to you for your information. In this respect, however, this does not constitute an extension of the customer’s warranty rights vis-à-vis us, but rather these manufacturer’s warranties are in addition to the customer’s warranty rights against us. Insofar as a replacement of modules or inverters is granted according to the manufacturer’s warranties, the customer may commission us to carry out the work at his expense. Corresponding work shall be remunerated according to our hourly rates applicable at any time and shall also be carried out on the basis of these General Terms and Conditions.
- We do not guarantee that the photovoltaic system is suitable for achieving certain economic goals of the customer.
- Our liability to you is excluded in the event of simple negligence in the event of a breach of non-essential contractual obligations and, in the event of negligence in other respects, is limited to the foreseeable and contract-typical damage and, in particular, does not include indirect damage or consequential damage. Essential contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance our customer may rely. However, the aforementioned limitation of liability shall not apply in the event of injury to life, limb or health or in the event of breach of a warranty or our liability under the German Product Liability Act (ProdHaftG). Our liability for damages arising from injury to life, limb or health and under the Product Liability Act shall remain unaffected by the above limitations and exclusions of liability.
- Section VIII para. 1 shall also apply with regard to our vicarious agents within the meaning of § 278 German Civil Code (BGB) as well as our statutory or legal representatives.
Retention of Title
- The delivered goods (goods subject to retention of title) remain our property until full payment of all claims arising from the contract concluded with the customer. In case of breach of contract by the customer, in particular in case of default of payment, we are entitled to take back the goods including the photovoltaic system. After taking back the goods, we shall be entitled to realize them; the realization proceeds shall be credited against the customer’s liabilities – less reasonable realization costs.
- The customer is obliged to treat the goods delivered under retention of title with care; in particular, he is obliged to insure them adequately at replacement value against fire, water and theft damage at his own expense. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
- in the event of seizures or other interventions by third parties on the goods including the photovoltaic system, the customer must notify us immediately in writing so that we can assert our property rights. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to Section 771 German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.
- Entrepreneurs: The customer shall be entitled to resell the goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties. This shall apply irrespective of whether the goods have been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The processing or transformation of the goods by the customer shall always be carried out for us as manufacturer within the meaning of Section 950 German Civil Code (BGB). If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title.
- To secure our claims against the customer, the customer assigns to us the claims against a third party arising from the combination of the goods with real property.
- The customer shall have a claim to release of the securities insofar as the realizable value of our securities (after deduction of the costs for administration and utilization of the security) exceeds the claims to be secured by more than 10 percentage; the selection of the securities to be released shall be incumbent upon us.
Changes of Construction
We reserve the right to make design changes at any time, insofar as the design is not specified in the technical product description and insofar as it does not lead to a limitation of the performance of the photovoltaic system; however, we are not obligated to make such changes even to products that have already been delivered.
Use of Software
Insofar as software is included in the scope of delivery, the customer shall be granted a non-exclusive and non-transferable right to use the delivered software including its documentation: It shall be provided exclusively for use on the delivery item intended for this purpose. Any use, reproduction, revision, translation of the software as well as any conversion from the object code into the source code for other purposes shall be prohibited, unless permitted in accordance with § 69 d German Copyright Act (UrhG).
- We have the right to rescind from the contract in parts or in full, if
- during the design or installation, defects in the stability of the building or the part of the building on which the photovoltaic and auxiliary systems are to be installed are detected,
- in the case of Section V. No. 3, the customer does not accept our offer to remove the project obstruction or does not immediately remove the project obstructions independently,
- the customer is in default with the payment of the remuneration and, despite an additional request for payment, does not make the payment in full within five (5) working days from receipt of the request for payment,
- a deterioration in the customer’s assets occurs or it subsequently becomes known that the customer was classified as uncreditworthy when the contract was concluded,
- Entrepreneurs: The customer ceases its business operations, or
- the opening of insolvency proceedings against the assets of the customer is applied for.
- The customer has the right to withdraw from the delivery contract in the event of changes to the service in accordance with Section II No. 4. This right of withdrawal of the customer expires 10 calendar days after the customer has been informed about the change of service.
Right of Revocation
- If you are a consumer (i.e. a natural person who places the order for a purpose that cannot be attributed to your commercial or independent professional activity), you have a right of withdrawal in accordance with the statutory provisions.
- If you, as a consumer, make use of your right of revocation according to Section 1, you have to bear the regular costs for the return of the delivered goods or the disassembly of the photovoltaic system.
- the regulations apply to the right of revocation, which are reproduced in detail in the following:
Right of Revocation
- You have the right to revoke this contract within fourteen days without giving any reason.
- The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the goods.
- In order to exercise your right of withdrawal, you must inform us (enter the name of the entrepreneur, address and, if available, telephone number, fax number and e-mail address) by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. You can use the attached model withdrawal form for this purpose, which is, however, not mandatory. You can fill out and submit the model withdrawal form or another clear declaration. If you make use of this option, we will immediately send you (e.g. by e-mail) a confirmation of receipt of such revocation.
- In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
Consequences of Revocation
- If you revoke this contract, we shall reimburse you all payments that we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. We can refuse the repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
- You must return or hand over the goods to us immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days.
- You bear the direct costs of returning the goods.
- You shall only be liable for any loss in value of the goods if such loss in value is due to handling of the goods that is not necessary for testing the quality, characteristics and functionality of the goods.
End of Revocation Instructions-
The right of withdrawal does not apply to distance contracts (Fernabsatzverträgen):
(a) for the delivery of goods that have been manufactured according to customer specifications or that are clearly tailored to personal needs or that are not suitable for return due to their nature or can spoil quickly or whose expiration date would be exceeded, and
(b) for the delivery of audio or video recordings or software, provided that you have unsealed the delivered data carriers.
Information regarding Data Protection
- Amendments or supplements to the provisions of the contract concluded between the parties must be made in writing. This also applies to any waiver of the written form requirement.
- As far as legally possible exclusive place of jurisdiction for legal disputes under or in connection with this Shareholder Loan Agreement shall be, to the extent legally permissible, the seat of the Company. This Shareholder Loan Agreement is subject to the laws of the Federal Republic of Germany.
- The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the entire legal relationship between the customer and us. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. Consumer: If you have placed the order as a consumer and have your habitual residence in another country at the time of your order, the application of mandatory legal provisions of this country shall remain unaffected by the choice of law made in sentence 1.
- If the customer is a merchant, legal entity under public law or special fund under public law exclusive place of jurisdiction for all direct and indirect legal disputes arising under or in connection with the contractual relationship shall be, to the extent legally permissible, the our registered seat. In all other respects, local and international jurisdiction shall be governed by the applicable statutory provisions.
- In the event any provisions of these General Terms and Conditions or provisions of any other agreements are or become invalid or unenforceable, the validity of the other provisions and agreements shall remain unaffected herefrom.
General Terms and Conditions of ENVIRIA Energy Holding GmbH, ENVIRIA Investor Solutions GmbH, ENVIRIA Engineering & Services GmbH and ENVIRIA Retail Solutions GmbH.
Date: December 2020