I.          Scope

 

1. All deliveries, services and offers by DELTA ENERGY SYSTEMS (Germany) GmbH are based solely on these General Terms and Conditions. They are an integral part of all contracts entered into by DELTA ENERGY SYSTEMS (Germany) GmbH (hereinafter called Delta Energy Systems or DES) with any contracting party (hereinafter called "the Customer") concerning any and all deliveries and services. They also apply to all future deliveries, services and the Customer, even if they are not the subject of a further separate agreement.

 

2. General terms of business on the part of the Customer apply only if confirmed by DELTA ENERGY SYSTEMS beforehand in writing. The General Terms and Conditions of DELTA ENERGY SYSTEMS apply even if DELTA ENERGY SYSTEMS unconditionally fulfills a delivery to the Customer with knowledge of terms and conditions of the Customer that are contrary or supplementary to the conditions contained herein.

 

II.         Conclusion of the contract and object of the delivery

 

1. All offerings by DELTA ENERGY SYSTEMS are non-binding and subject to change without notice, insofar as they are not explicitly designated as being binding or they include a specified term of acceptance. No contract shall enter into force until DELTA ENERGY SYSTEMS has provided confirmation of the order in writing or electronically. The scope of the delivery shall be determined by the written or electronic order confirmation. Collateral agreements and amendments shall require written confirmation by DELTA ENERGY SYSTEMS in order to be effective.

 

2. The right to modify the goods with regard to design and form is reserved insofar as (i) the goods are not substantially altered thereby and the modifications may be reasonably accepted by the Customer or (ii) an express agreement has been reached with the Customer that claims made by DELTA ENERGY SYSTEMS shall be part of the object of the delivery or service (e.g., weight, dimensions, serviceability, resilience, tolerances and technical specifications) as well as illustrations thereof (e.g. drawings and figures). The stipulations by DELTA ENERGY SYSTEMS cited above regarding the object of the delivery or service as well as the illustrations relating thereto are not guaranteed, nor do they constitute a specific condition of the delivery unless an express written or electronic agreement has been reached with DELTA ENERGY SYSTEMS. Unless an express written or electronic agreement has been reached with DELTA ENERGY SYSTEMS, these stipulations shall be understood as a non-binding description and designation of the delivery or service, to which divergences as defined under the first sentence of this paragraph II.2 are permitted. In cases where a binding agreement regarding the specific condition of the delivery service has been reached with the Customer, DELTA ENERGY SYSTEMS reserves the right to make amendments that are necessary due to mandatory statutory regulations and are reasonable to the Customer. In the event these are unreasonable to the Customer, the Customer may withdraw from the contract. Other claims are excluded.

 

3. DELTA ENERGY SYSTEMS reserves all rights, in particular proprietary rights and copyright, to all documents, pictures, drawings, sketches, specifications and samples, etc., they may make available to the Customer. The Customer may only use these items in accordance with the contractually agreed purpose. They must be treated as strictly confidential and may not be made accessible to third parties without the prior written consent of DELTA ENERGY SYSTEMS.

 

III.        Pricing and Payment

 

1. The prices for deliveries and services apply as stated in the order confirmation by DELTA ENERGY SYSTEMS. Any additional or special services will be calculated separately. Unless otherwise agreed between the parties, prices are in Euro, EXW (EXW, Incoterms 2010) additional packaging and statutory value-added tax. Any customs duties, taxes, fees or similar charges which are to be borne by DELTA ENERGY SYSTEMS will be separately invoiced.

 

2. When an agreement stipulates DELTA ENERGY SYSTEMS is to execute an order more than four months after the contract has taken effect, or the order does not take effect for more than four months after the contract has been executed for reasons for which the Customer is responsible, DELTA ENERGY SYSTEMS will invoice the prices as stipulated in the price list valid on the date of delivery.

 

3. In case raw materials prices for the respective goods change considerably (at least 10 %) after submission of the quotation by DELTA ENERGY SYSTEMS, or after the order confirmation or conclusion of a framework agreement with fixed prices with DELTA ENERGY SYSTEMS, DELTA ENERGY SYSTEMS reserves the right to an appropriate increase of prices, taking the legitimate interests of the Customer into account, in particular with respect to any agreements already reached regarding the continued delivery of goods at a specified price. When calculating the price increase for the necessary raw materials, these shall be made on the basis of publicly available sources (e.g. for chemicals the ICIS Newsletter, Harriman). When requested by the Customer, DELTA ENERGY SYSTEMS shall disclose or credibly explain the raw materials in question, and document the price increases which have arisen using the sources as described above.

 

In cases where other important cost factors, particularly energy, wage, transportation or insurance costs change considerably (at least 10 %) after submission of the quotation by DELTA ENERGY SYSTEMS, or after the order confirmation or conclusion of a framework agreement with fixed prices with DELTA ENERGY SYSTEMS, DELTA ENERGY SYSTEMS reserves the right, according to the above provisions, to an appropriate increase of prices, taking the legitimate interests of the Customer into account, in particular with respect to any agreements already reached regarding the continued delivery of goods at a specified price.

 

4. Invoice amounts are payable, without any deduction, 30 days after the invoice date at the latest, unless a prior agreement has been reached in writing. In the latter event, the timeliness of the payment shall be based on the date when the payment was received by DELTA ENERGY SYSTEMS.

 

5. If the Customer fails to pay the purchase price by the date due, and the Customer is a merchant within the meaning of the German Commercial Code (HGB), then interest will be charged on the outstanding amounts at a rate of 5% p. a. as from the due date; in the event of a delay in payment, the Customer shall pay to DELTA ENERGY SYSTEMS a payment interest at 8 percentage points above the basic interest rate. If the Customer is a consumer, the Customer shall pay to DELTA ENERGY SYSTEMS a payment interest at 5 percentage points above the basic interest rate in the event of a delay in payment. However, DELTA ENERGY SYSTEMS reserves the right to demonstrate that higher damages were incurred as a result of the delay in payment.

 

6. The right to set-off is only entitled to the Customer if the Customer's counterclaim is ascertained as legally binding or is undisputed by DELTA ENERGY SYSTEMS. In addition, the Customer is authorized to exercise a right of retention only if the Customer's claim has come due and is based on the same contractual relationship.

 

7. DELTA ENERGY SYSTEMS reserves the right to make any still outstanding deliveries only against payment in advance or against provision of a security if any circumstances become known that substantially reduce the Customer's credit worthiness and which jeopardize payment of outstanding claims by DELTA ENERGY SYSTEMS under the agreement, including those from other single orders under the same framework agreement, as deemed by the prudent judgment of DELTA ENERGY SYSTEMS.

 

8. Unless another prior agreement has been reached with the Customer, all payment shall be made in € (Euro) and shall be made solely to DELTA ENERGY SYSTEMS.

 

IV.        Delivery and delivery schedules

 

1. The order confirmation by DELTA ENERGY SYSTEMS shall stipulate the delivery dates, insofar as a fixed date or a fixed deadline has been expressly promised or agreed therein. Any deadlines and dates for delivery proposed by DELTA ENERGY SYSTEMS shall be considered as approximate. The period of time for delivery does not begin until the Customer has provided any necessary documents, approvals and clearances, and until agreed down payment has been received.

 

The delivery period shall be deemed observed when, by the expiry of the delivery period, DELTA ENERGY SYSTEMS has readied the goods for dispatch and the Customer has been notified of readiness of dispatch. DELTA ENERGY SYSTEMS has the right to refuse handover to the carrier when the security of the load does not conform to the German VD Guideline 2700 due to the condition of the transport vehicle being utilized by the carrier, or when the transport vehicle does not, in the due and proper judgment of DELTA ENERGY SYSTEMS, conform to the demands of the German road traffic licensing authority (StVZO) for roadworthiness. If DELTA ENERGY SYSTEMS refuses handover to the carrier for the above-cited reasons, the stipulations under paragraphs V. 2 and V.3 apply.

 

2. Partial deliveries, to a reasonable extent, are permitted when the partial delivery can be used by the Customer in the framework of the contractually agreed intended use, and when the Customer incurs no additional costs or substantial additional expenditures as a result.

 

3. If shipment or supply is delayed after notification of readiness for shipment at the request of the Customer, or for reasons attributable to the Customer, DELTA ENERGY SYSTEMS may charge storage costs to the Customer in the amount of 0.5% of the invoice amount for each storage month commenced, to a maximum 5% of the invoice amount. The contracting parties retain the right to provide proof of a higher or lower level of damages caused by the delay. When DELTA ENERGY SYSTEMS provides proof of a higher level of damages, the storage costs shall be applied to the claim for compensation of damages.

 

4. The delivery is conditional on the timely and correct supply by DELTA ENERGY SYSTEMS suppliers.

 

5. If DELTA ENERGY SYSTEMS is delayed in a delivery, or if DELTA ENERGY SYSTEMS is unable to fulfill a delivery, the Customer has the right to withdraw from the contract in accordance with legal provisions. In case of delay or when it is impossible to render the service, DELTA ENERGY SYSTEMS is liable to provide compensation only in accordance with the stipulations under clause VIII of these General Terms and Conditions of Delivery.

 

6. Events of force majeure entitle DELTA ENERGY SYSTEMS to postpone the delivery for the duration of the event plus an appropriate initial period, or to withdraw from the contract entirely or partly if it has not been fulfilled. Force majeure shall be defined as strikes, lock-outs, political unrest or other unforeseen events such as operational disruptions which render it impossible for DELTA ENERGY SYSTEMS to deliver on time despite all reasonable efforts. This also applies when the above cited impediments occur at a sub-supplier or occur at a time in which DELTA ENERGY SYSTEMS is in delay. DELTA ENERGY SYSTEMS will promptly notify the Customer in the event an instance of force majeure as defined under clause IV. 6 arises. The Customer may require DELTA ENERGY SYSTEMS to stipulate within a period of six weeks whether DELTA ENERGY SYSTEMS will withdraw in total or in part with regard to the part of the contract which has not been performed, or whether delivery will be made within a reasonable period of notice. If DELTA ENERGY SYSTEMS does not respond within the period stipulated by the Customer, the Customer may withdraw from the unfulfilled portion of the contract.

 

V.         Packaging, shipping, transfer of risk and acceptance of the goods by the Customer

 

1. Unless otherwise expressly agreed, DELTA ENERGY SYSTEMS is free to select the type of packaging at its discretion.

 

2. The passing of risk shall occur no later than the time when the object of delivery is handed over to the carrier stipulated by the Customer. This also applies to partial deliveries. In addition, the Customer will be in default on acceptance if DELTA ENERGY SYSTEMS has notified the Customer of readiness for shipment and the Customer refuses to accept the goods at the stipulated date, fails to retrieve the goods at the stipulated date, or fails to have the goods picked up by a carrier.

 

3. Should the Customer be in default of acceptance or infringe upon other obligations to cooperate, DELTA ENERGY SYSTEMS reserves the right to demand compensation for any damages or additional costs arising therefrom. In this event, risk of accidental destruction or accidental deterioration of the contractual item passes to the Customer. After setting a reasonable time limit and upon its ineffectual expiry, DELTA ENERGY SYSTEMS also reserves the right to make other use of the goods and to supply the Customer after a suitably extended delivery period.

 

4. The object of delivery will only be insured against theft, breakage, damage in transit, fire and water damage, and other insurable risks at the request and cost of the Customer.

 

5. Deliveries must be accepted by the Customer, even if they exhibit minor defects, without prejudice to the Customer's rights under clause VII of these General Terms and Conditions of delivery, and may not be returned in advance of any right on the part of the Customer to withdraw from the contract under the terms of clause VII. 3.

 

VI.        Retention of title

 

1. DELTA ENERGY SYSTEMS shall retain title in the delivered goods until all claims against the Customer arising from the Terms and Conditions have been met, including future claims and such claims arising from contracts concluded at the same time or contracts concluded at a later date. This also applies when individual or allclaims made by DELTA ENERGY SYSTEMS have been addedto a current invoice and the balance was issued and accepted.

 

2. If DELTA ENERGY SYSTEMS withdraws from a contract because of violations of the contract on the part of the Customer, in particular delayed payment, the Customer must bear all costs for repossession of the object of delivery. In the event of seizure or other actions of third parties, the Customer shall promptly notify DELTA ENERGY SYSTEMS in writing, and provide all necessary information, including informing the third party of the existing ownership conditions. The Customer is not allowed to pledge the goods delivered or to transfer them by way of security. The Customer is obligated to treat the delivery item with care; in particular the Customer is obligated to to insure the item at its own expense against damage by fire, water and theft to the replacement value.

 

3. If the Customer is a merchant within the meaning of the German Commercial Code (HGB), the Customer has the right to sell the delivery item in the ordinary way of business. However, the Customer shall cede to DELTA ENERGY SYSTEMS all his claims and secondary rights which might arise from the resale of the goods to the end customer or third parties, regardless of whether the goods are resold with or without processing. The customer is entitled to collect on these claims even after assignment. The right of DELTA ENERGY SYSTEMS to collect on these claims is not affected; however, DELTA ENERGY SYSTEMS will notundertake to collect the claim as long as the Customer properly fulfills his payment obligations,is not in default of payment, and in particular, no insolvency proceedings have been filed against the Customer's assets. DELTA ENERGY SYSTEMS can request that the buyer discloses to them the transfer of the claim and the respective debtors and and that he provide all  the necessary information  as well as relevant documents, and inform the debtors of the assignment.

 

4. Processing or modification of the delivered objects by the Customer shall always be performed for DELTA ENERGY SYSTEMS. The Customer's expectant right to the delivered object shall continue in the modified item. If the delivered object is processed together with, or indissolubly linked to other objects that do not belong to DELTA ENERGY SYSTEMS, then DELTA ENERGY SYSTEMS shall acquire co-ownership of the new item in proportion to the objective value of the delivered object compared with the value of the other objects processed at the time of the processing or linking. If the linking takes place in such a way that the Customer's item is to be regarded as the main item, it is agreed that the Customer will transfer co-ownership to DELTA ENERGY SYSTEMS on a proportional basis. The Customer shall preserve the sole or co-ownership for DELTA ENERGY SYSTEMS. In addition, the same provisions apply to the item resulting from the processing or linking as to the object delivered under reservation.

 

 

5. As security for the claims of DELTA ENERGY SYSTEMS, the Customer also assigns to DELTA ENERGY SYSTEMS all claims against a third party resulting from the joining of the goods with a building structure or real property.

 

6. DELTA ENERGY SYSTEMS is obligated to release all securities accruing to it, taking into account customary bank downward valuation adjustments, to the extent that their realizable value exceeds the claim by more than 20%. This should be based on the purchase prices for goods and the nominal value for claims.

 

VII.       Warranty

 

1. The warranty claims of the Customer require that he has complied with duties of inspection and notification incumbent upon him in the proper manner. The Customer must provide written notice to DELTA ENERGY SYSTEMS, with a precise statement of the type and scope of the alleged defect, so that DELTA ENERGY SYSTEMS may examine whether the notice of defect is justified.

 

The Customer must also inspect the supplied goods for transport damage immediately upon arrival, and must indicate any damages found in writing on the bill of lading, which must be countersigned by the carrier, and inform DELTA ENERGY SYSTEMS of the matter in writing.

 

On receipt of the written complaint by the Customer, DELTA ENERGY SYSTEMS has the right to inspect the allegedly defective delivery item at the Customer's location at their own expense by an independent consultant or by members of their own staff, or alternatively to have members of its own staff take part in the inspection. If and to the extent that the inspection reveals that the delivered item does not display the alleged defect, the Customer will bear the costs of the inspection.

 

2. In the event that the delivered item is defective, DELTA ENERGY SYSTEMS is entitled to choose whether to remedy the defect or to replace the defective item. In this event, DELTA ENERGY SYSTEMS will bear the expenses necessary for the purposes of supplementary performance as stipulated under law. If the Customer lodges a claim against DELTA ENERGY SYSTEMS for justified costs which he incurred through the use of his own employees, equipment, or objects, these claims for reimbursement on the part of the Customer are limited to the actual costs incurred. If the expenses required for the purposes of subsequent performance increases because the Customer has taken the delivered item to a place other than the agreed place of delivery, these costs are be borne by the Customer.

 

3. If DELTA ENERGY SYSTEMS is not willing or able to remedy the defect or make a substitute delivery, or if this should be delayed for more than a reasonable period of time for reasons for which DELTA ENERGY SYSTEMS is accountable, or if the remedy of the defect fails at least twice for other reasons, the Customer may, at its election, either withdraw from the contract or assert a claim for a reduction in the purchase price.

 

4. The right of the Customer to rescind the contract shall be excluded if the Customer is unable to return the received performance and this inability is not due to causes for which DELTA ENERGY SYSTEMS can be held responsible, or if the defect only became apparent after processing or modifying the goods. After a delivery of defective goods or an incomplete delivery, the Customer is only entitled to rescind the entire contract and to damages instead of the entire fulfillment as described under the stipulations which follow if an objective measure is applied in order to confirm that he has no interest in the fulfillment rendered.

 

5. For products that are essentially manufactured by third parties, the liability of DELTA ENERGY SYSTEMS is limited to the assignment of the liability claims which DELTA ENERGY SYSTEMS is holding against the supplier of the subcontracted products. If the recourse against the supplier of the subcontracted products fails for reasons not attributed to the Customer (e.g., due to insolvency of the supplier), the Customer is entitled to lodge a claim for damages against DELTA ENERGY SYSTEMS as described under clause VII of this agreement.

 

6. Only the Customer is entitled to lodge claims for damages as described under clause VIII of these General Terms and Conditions of Delivery.

 

7. The warranty is void if the Customer modifies the delivered item without the agreement of DELTA ENERGY SYSTEMS, or allows it to be modified by others, and as a result of this it is impossible or unreasonably difficult to rectify the defect. The Customer is responsible for all additional costs incurred while remedying the defect in any delivered item which has been modified. No liability is assumed for damages incurred for any of the following reasons:

 

• unsuitable and improper use, use other than for the purpose intended;
• faulty assembly, start up, or operation on the part of the Customer or third party, in as much as the defect is not caused by an error in the assembly or operating instructions issued by DELTA ENERGY SYSTEMS;
• modifications to the delivered item by the Customer or third party;
• ordinary wear and tear, in as much as not expressly included in the warranty offered by DELTA ENERGY SYSTEMS;
• faulty or negligent treatment or storage;
• use of unsuitable operating materials or replacement materials;
• chemical, electrochemical, mechanical, atmospheric or electrical influences, inasmuch as they are due to a fault on the part of DELTA ENERGY SYSTEMS;
• incorrect or incomplete documentation, particularly samples or drawings, provided by the Customer to DELTA ENERGY SYSTEMS for use in manufacturing of the object of the delivery, or any such documentation that the Customer instructed DELTA ENERGY SYSTEMS to observe during manufacturing. DELTA ENERGY SYSTEMS is not under any obligation to inspect documentation provided by the Customer for completeness and correctness.

8. The statute of limitations for claims arising due to subsequent performance, withdrawal from the contract or reductions due to defects in the delivered item is one year after transfer of risk. In deviation of the aforesaid, for defects in a building or for goods which due to their typical use were incorporated into the building and have caused a defect in the latter, the statutory limitation period applies. The stipulations of clause VIII 10 apply to the statute of limitations on claims for damages arising due to defects in the delivered item.

 

VIII. Indemnity

 

1. DELTA ENERGY SYSTEMS is liable to compensate for damage, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contract negotiation, and action in tort, limited in accordance with this clause VIII. All further liability for compensation for damages is excluded.

 

2. DELTA ENERGY SYSTEMS is liable within the framework of the applicable legal provisions for intentional or grossly negligent conduct on the part of legal representatives or executive employees of DELTA ENERGY SYSTEMS, for endangerment to life or bodily injury or health, for guaranteed characteristics, and within the scope of the regulations of the Product Liability Act.

 

3. In addition, DELTA ENERGY SYSTEMS is liable

 

• for damages damage arising from a slightly negligent violation of essential contractual obligations on the part of our legal representatives, executive employees and other agents employed on its behalf;
• for damages which have been caused by the gross negligence or wrongful intent of its simple vicarious agents without the violation of essential contractual obligations.

Essential for the contract are all those obligations whose fulfillment is due implementation of the contract and on which the contractual partner can reasonably expect to be able to rely.

 

The liability of DELTA ENERGY SYSTEMS for compensation for damages is limited in such cases as described under this clause VIII 3 to the conditions described in clause VIII 4, 5 and 6 below.

 

4. The liability of DELTA ENERGY SYSTEMS under the above clause VIII 3 is limited to compensation for damages to the amount of the foreseeable damage typical for the contract.

 

5. DELTA ENERGY SYSTEMS assumes no liability in accordance with clause VIII 3 insofar as the Customer on his part has limited his liability against the purchaser effectively. In this respect, the Customer will make every effort to reach an agreement with his purchasers to a limitation of liability – also to the benefit of DELTA ENERGY SYSTEMS – to the extent legally permissible.

 

6. The liability assumed by DELTA ENERGY SYSTEMS under clause VIII 3 covers indirect damages and consequential damages due to defaults in the delivered object only when such damage can be typically expected and when the delivered object is used in conformity with its intended purpose. Claims for damages due to lost profit are excluded in all cases.

 

7. In so far as DELTA ENERGY SYSTEMS provides technical information or acts as an adviser and this information or advice is not part of the contractually agreed scope of services owed by DELTA ENERGY SYSTEMS, this is done free of charge and with the exclusion of any liability.

 

8. The Customer shall inform and consult with DELTA ENERGY SYSTEMS fully and promptly in the event that he wishes to consult DELTA ENERGY SYSTEMS in accordance with the above stipulation. The Customer must provide DELTA ENERGY SYSTEMS the opportunity to investigate the damage occurred. The contracting parties shall come to an agreement about the measures to be taken, particularly in the course of settlement negotiations.

 

9. The provisions regarding the exclusion of claims for defects under clause VII 7 of these General Terms and Conditions of Delivery apply.

 

10. The limitation period for claims for compensation due to defective deliveries is limited to one year from the transfer of risk. The limitation period for claims for compensation due to an infringement of other contractual obligations is limited a period of one year as of the end of the year during which the claim arose and the Customer obtained knowledge of the circumstances justifying the claim or would have acquired knowledge if not prevented from this through gross negligence.

 

In deviation of the aforesaid, in the event of the loss of life, physical injury or damage to health, for damages under the German Product Liability Act, as well as for such damages which have been caused through fraudulent conduct, wrongful intent or gross negligence by legal representatives, executive employees or vicarious agents of DELTA ENERGY SYSTEMS, or for defects in a building or for goods which due to their typical use were incorporated into the building and have caused a defect in the latter, the statutory limitation period applies.

 

IX. Industrial property rights

 

1. Unless otherwise expressly agreed, DELTA ENERGY SYSTEMS guarantees only that the goods does not infringe upon any third-party property rights (hereafter: property rights) in the country of delivery, unless DELTA ENERGY SYSTEMS has positive knowledge of an infringement of property rights at the customer headquarters location, or in another country in which the customer has informed DELTA ENERGY SYSTEMS in writing that it plans to resell the object of delivery in accordance with these conditions. If a third party asserts a justified claim against the Customer against a product supplied by DELTA ENERGY SYSTEMS in accordance with the contract, DELTA ENERGY SYSTEMS will be liable to the Customer within the provisions in clause 1 as follows:

 

a) The Customer must promptly inform DELTA ENERGY SYSTEMS in writing of the third party's claim of an infringement of property rights. DELTA ENERGY SYSTEMS will, at its own expense and at its own discretion, dispute the claim or settle such a dispute by compromise. The Customer grants DELTA ENERGY SYSTEMS the sole authority in legal defense and in settlement negotiations, and will provide DELTA ENERGY SYSTEMS with any necessary powers of attorney, including the right to grant powers of substitution.

 

b) Insofar as the delivery constitutes an infringement in accordance with clause 1, DELTA ENERGY SYSTEMS will remedy the cause of the property infringement within a reasonable period. DELTA ENERGY SYSTEMS will at its expense and discretion either obtain a license for delivered items in question, modify these such that property rights are not infringed upon, or replace them.

 

c) If this does not remedy the property right infringement, if the remedy is impossible under reasonable conditions, or if the remedy is unacceptable for the Customer, the Customer shall be entitled to the statutory right of rescission or reduction. The duty of DELTA ENERGY SYSTEMS to pay damages is governed by clause VII of these General Terms and Conditions of Delivery.

 

d) DELTA ENERGY SYSTEMS is not liable for claims of third parties arising due to violations of property rights when such violations are caused by caused by specifications made by the Customer, to a type of use not foreseeable by DELTA ENERGY SYSTEMS, by a modification of the delivered goods by the Customer, through use under operating conditions not recommended by DELTA ENERGY SYSTEMS, through non-contractual use, or through use together with products not supplied by DELTA ENERGY SYSTEMS. DELTA ENERGY SYSTEMS is not liable, in general, for claims made by third parties due to violations of property rights for which the Customer is responsible. If third parties lodge such a claim against DELTA ENERGY SYSTEMS, the Customer shall indemnify DELTA ENERGY SYSTEMS.

 

e) DELTA ENERGY SYSTEMS is also not liable to the Customer when the Customer has acknowledged the infringement to a third party without the agreement of DELTA ENERGY SYSTEMS, or in the event that the Customer suspends use of the product and does not inform the third party that the suspension of use may not be construed as acceptance of responsibility for any infringement claim.

 

2. In the event of an infringement of property rights, the stipulations under clauses VII. 2 and 5 apply.

 

3. The stipulations regarding the statute of limitations in clauses VII. 8 and VIII. 10. apply.

 

X.         Export law – conditions for delivery by DELTA ENERGY SYSTEMS

 

The delivery by DELTA ENERGY SYSTEMS is subject to the proviso that any required exporting permit has been granted and no other hindrances resulting from exporting or supplier directives which must be adhered to by DELTA ENERGY SYSTEMS or by one of DELTA ENERGY SYSTEMS's suppliers impede the delivery.

 

XI.        Final provisions

 

1. If the Customer is a merchant, legal entity or corporate body under public law, any disputes arising hereunder will be settled before a competent court of law in Soest, Germany, the headquarters of DELTA ENERGY SYSTEMS. However, DELTA ENERGY SYSTEMS reserves the right to settle disputes in a different court of law.

 

2. Unless otherwise agreed in writing, the place of performance for all contractual obligations arising from this business relationship will be Soest, Germany.

 

3. These Terms and Conditions are governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG), enacted on April 11, 1980, does not apply to these Terms and Conditions.  

 

Should a provision of these Terms and Conditions of Delivery be or become invalid, the validity of the other provisions will not be affected. The contracting parties must replace the invalid term by a mutually agreed term that comes as close as possible to the business intent of the invalid provision. This stipulation also applies to any loopholes in the provisions of these Terms and Conditions of Delivery.

 

 

Terms & Conditions