1.     Scope

1.1    These General Terms and Conditions of Sale and Delivery (“GTC”) shall apply to all - including future - contracts with DMEGC Germany GmbH, Wilhelmsplatz 12, 63065 Offenbach am Main ("DMEGC"), under which DMEGC sells goods, services. DMEGC will not recognize any terms and conditions of the Customer supplementary to, contrary to or deviating from these General Terms and Conditions of Sale and Delivery unless DMEGC has expressly agreed to their application in writing. This shall also apply if DMEGC unconditionally dispatches Supplies with knowledge of terms and conditions of the Customer conflicting with or deviating from these General Terms and Conditions of Sale and Delivery.

1.2       The GTC only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (“BGB”).

1.3    It is pointed out that, in accordance with the provisions of the Federal Data Protection Act, personal data will only be collected, processed and passed on within the company if this is necessary for the processing of the business relationship.

1.4    If DMEGC has concluded a framework supply agreement with the Customer, the validity of such agreement shall remain unaffected.

2.     Offers, Conclusion of contract

2.1  Our offers are always subject to change and non-binding. If an order is to be considered as an offer according to Section 145 BGB, DMEGC may accept it within two weeks. A contract will be concluded upon written order confirmation or execution of the delivery by DMEGC.

2.2  Orders, conclusion of contracts and delivery schedules as well as any amendments or supplements thereto shall be made in writing; verbal agreements with employees shall only be binding upon written confirmation by DMEGC.

2.3  Advertising brochures and catalogues shall not be binding.

2.4  Insofar as a written form requirement is stipulated in the GTC or in the contract, text form within the meaning of section 126b BGB, e.g., e-mail, shall be sufficient to comply with the written form requirement.

3.     Documents, Confidentiality

3.1  DMEGC reserves all property rights, copyrights and other industrial property rights to all illustrations, plans, drawings, design instructions, product descriptions and other documents ("Documents") made available to the Customer. Documents shall be used exclusively for the preparation of an offer and/or for the acceptance and use of an order fulfilled by DMEGC. They shall be returned to DMEGC without delay or destroyed as soon as DMEGC so requests. The Customer shall notify DMEGC without delay of any impairment of such rights as soon as it becomes aware thereof.

3.2  The Customer shall be obliged to inform DMEGC about all documents, supplies, information and knowledge provided to him for the purpose of preparing a quotation or processing an order - in particular about the type and design of products manufactured by DMEGC and the goods to be supplied by the Supplier as well as their respective price, about internal processes at DMEGC and about other business and trade secrets of DMEGC - whether in embodied, unembodied or digital form (“know-how”) and to use them exclusively for the purpose of preparing the offer or processing the order. The obligation to maintain secrecy shall also include the fact of the respective order and shall continue to apply for an unlimited period of time even after the order has been executed. The obligation of confidentiality shall also apply to the employees of the Customer.

3.3  Upon DMEGC's request, all know-how originating from DMEGC (including, if applicable, copies or records made) and items provided on loan shall be immediately and completely handed over or irretrievably destroyed upon DMEGC's request.

3.4  The Customer may refer to business connections with DMEGC in advertising materials and reference lists only with DMEGC's prior written consent.

4.     Prices, Payment, Rights of retention

4.1  Unless otherwise agreed, DMEGC's prices shall be quoted in Euro and shall be exclusive of packaging and value added tax at the applicable rate.

4.2  In the event that the circumstances underlying the pricing, in particular currency parities or governmental/official taxes, levies, fees, customs duties, increased wage, material or raw material costs etc. change between the date of the offer and the agreed delivery date, DMEGC shall be entitled to adjust prices and conditions to the changed circumstances. This alignment is possible without the consent or approval of the customer.

4.3  DMEGC shall furthermore adjust the prices to be paid at its reasonable discretion to the development of the costs which are decisive for the price calculation. A price increase shall be considered, and a price reduction shall be made if e.g. the costs for the procurement of raw materials (in particular polysilicon, wafer and precious metals such as silver) increase or decrease after the conclusion of the contract). Increases in one type of cost, e.g. polysilicon procurement costs, may only be used for a price increase to the extent that they are not offset by any decreases in costs in other areas, such as distribution costs. In the event of cost reductions, e.g., in polysilicon procurement costs, prices shall be reduced by DMEGC to the extent that such cost reductions are not fully or partially offset by increases in other areas. In exercising its reasonable discretion DMEGC shall choose the respective dates of the price change in such a way that cost reductions are not taken into account according to standards which are less favourable for the Customer than cost increases, i.e., cost reductions shall have an effect on the price at least to the same extent as cost increases. The Customer shall have the right to have a new price communicated to him reviewed to the effect that the determination was made at reasonable discretion.

4.4  Governmental costs, such as taxes, duties, levies and fees are to be borne by the Customer.

4.5  Unless otherwise agreed, the purchase price shall be paid within 14 days after delivery. Default interest shall be charged at a rate of 8% above the respective base interest rate p.a. DMEGC reserves the right to claim higher damages caused by default.

4.6  Offsetting is only permissible in the case of undisputed or legally established counterclaims of the Customer. The Customer shall only be entitled to rights of retention insofar as they are based on the same contractual relationship and are acknowledged or legally established.

5.     Delivery, Transfer of Risk, Damages

5.1  Delivery is ex works or ex warehouse. If the goods are shipped to the Customer at the Customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer upon dispatch to the Customer, at the latest upon delivery to the transport company. This shall apply irrespective of whether the dispatch of the goods is from the place of performance or who bears the freight costs.

5.2  Agreed periods for delivery of goods and performance of services shall generally commence on the day of the conclusion of the respective contract. However, they shall not commence

·before all documents required for the delivery or performance have been received by DMEGC and any questions concerning the documents have been clarified,

·before the Customer has rendered any cooperation required for the delivery or performance,

·before the parties have agreed on the type of performance, before all permits required for the delivery or performance have been granted, and

·before any agreed down payment has been received by DMEGC.

5.3  If the Customer is in default of acceptance or if he culpably violates other obligations to cooperate, DMEGC shall be entitled to claim compensation for the damage incurred, including any additional expenses. Further claims shall remain reserved. If the above conditions are fulfilled, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer at the moment the Customer is in default of acceptance or debtor's delay.

5.4  DMEGC expressly reserves the right to make partial deliveries.

5.5  Any liability of DMEGC for delays on the part of the shipment company is excluded.

6.     Retention of title

6.1  DMEGC shall retain title to the delivered goods ("Reserved Goods") until all claims for payment against the Customer arising from the business relationship have been satisfied in full. 

6.2  The Customer may resell the Reserved Goods only in the ordinary course of business. The Customer shall not be entitled to dispose of the Reserved Goods in any other way, in particular to pledge or assign them as security.

6.3  The Customer shall have the right to further process Reserved Goods. Such further processing shall be free of charge and exclusively for DMEGC as manufacturer within the meaning of Section 950 BGB without obligating DMEGC. The processed goods shall also be considered as Reserved Goods.

6.4  In case of processing, combining or mixing with goods not owned by DMEGC, DMEGC shall acquire co-ownership in the new goods. The extent of such co-ownership shall be determined by the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods. If DMEGC's ownership expires by combination or mixing, the Customer shall transfer to DMEGC the ownership rights to the new item corresponding to the invoice value of the Reserved Goods and shall keep them in safe custody for DMEGC free of charge. The co-ownership rights shall be considered as Reserved Goods.

6.5  The Customer hereby assigns to DMEGC the claim arising from a resale of the Reserved Goods. If the Reserved Goods are sold by the Customer together with other goods not supplied by DMEGC, the assignment of the claim from the resale shall only apply to the amount of the resale value of the Reserved Goods. In case of resale of goods in which DMEGC has co-ownership shares, the assignment of the claim shall be in the amount of the value of the resale value of these co-ownership shares.

6.6  The Customer shall be authorized to collect the claims assigned to DMEGC from the resale of the Reserved Goods.

6.7  DMEGC undertakes to release the securities to which it is entitled upon the Customer's request if the realizable value of the securities exceeds the claims to be secured by more than 10% in total.

6.8  The Customer shall insure the Reserved Goods at its own expense against fire, breakage, water and theft.

6.9  The Customer shall immediately notify DMEGC of any seizure of the Reserved Goods or other interventions by third parties.

7.     Warranty, Notice of defects

7.1  The delivered goods shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer. They shall be deemed to have been accepted if DMEGC has not received a written notice of defect with regard to obvious defects or other defects which could be detected by an immediate and careful inspection immediately after delivery of the goods. This shall not apply if the defect was not detectable during an inspection. If a defect becomes apparent at a later date, the Customer shall notify DMEGC thereof without undue delay after discovery, otherwise the goods with the defect shall be deemed to have been accepted. This shall not apply if DMEGC has fraudulently concealed the defect.

7.2  In the event that the notice of defect is justified and made in due time, the Customer's claim shall be limited to supplementary performance, in which case DMEGC may, at its option, deliver a defect-free item as a replacement or remedy the defect.

7.3  Claims for defects shall become statute-barred 12 months after delivery of the goods delivered by DMEGC to the Customer. Claims for damages based on intentional or grossly negligent breach of duty by DMEGC shall be subject to the statutory limitation period. If the law otherwise prescribes longer periods, these periods shall apply. Prior to any return of the goods DMEGC's consent shall be obtained.

7.4  Claims of the Customer for expenses incurred in the course of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses are increased because the goods delivered by DMEGC have subsequently been brought to another location than the originally delivered location, unless doing so complies with the intended use of the goods.

7.5  The Customer shall have a right of recourse against DMEGC only insofar as the Customer has not concluded any agreements with its customer exceeding the legally mandatory claims based on defects. Furthermore, 7.1 to 7.4of these Conditions of Sale and Delivery shall apply mutatis mutandis to the extent of the Customer's right of recourse against DMEGC.

8       Claims for damages

8.1  DMEGC's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall be limited in accordance with the provisions of this Clause 8, insofar as fault is involved.

8.2  DMEGC shall not be liable in case of simple negligence of its organs, legal representatives, employees or other vicarious agents unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the goods free of essential defects in due time as well as consulting, protection and care obligations which shall enable the Customer to use the delivery goods in accordance with the contract or which are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from considerable damage.

8.3  To the extent that DMEGC is liable for damages under Clause 8.2, such liability shall be limited to damages which DMEGC foresaw at the time of the conclusion of the contract as a possible consequence of a breach of contract or which DMEGC should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall only be compensable insofar as such damage is typically to be expected when the delivery goods is sued as intended.

8.4  Insofar as DMEGC provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by DMEGC, this shall be done free of charge and to the exclusion of any liability.

8.5  The limitations shall not apply to DMEGC's liability for wilful misconduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

9 Force majeure

9.1  Force majeure and other events unforeseeable at the time of conclusion of the contract, including war, epidemics, riots, lawful industrial action and strikes, orders of higher authorities, shortage of energy and raw materials, traffic and unavoidable operational disturbances as well as fire shall release DMEGC from its obligations to perform for the duration of the disturbance and the extent of its effects. In case of unforeseeable duration, but not earlier than 30 days after their occurrence within the meaning of sentence 1 of this provision shall entitle DMEGC to withdraw from the contract in whole or in part without the Customer being entitled to claim damages; the same shall apply insofar as the aforementioned circumstances render the performance of the contract permanently uneconomical and DMEGC can no longer reasonably be expected to adhere to the contract. DMEGC shall inform the Customer as soon as possible about the occurrence of force majeure or similar events.

10 Final provisions

10.1  These GTC and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Place of performance and place of jurisdiction shall be the registered office of DMEGC, unless otherwise stated in the order confirmation or contracts.

10.1  Should any provision of this contract be invalid or unenforceable or become invalid or unenforceable after the conclusion of the contract, the validity of the remaining provisions of the contract shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.

10.1  These General Terms and Conditions of Sale and Delivery are written in German and English. In the event of any contradictions, the German version shall prevail.