General terms of delivery and payment

of BayWa r.e. Solar Systems Co., Ltd. (hereinafter referred to as “BayWa r.e.”)

I.  SCOPE OF TERMS

1) These General Terms of Delivery and Payment (hereinafter: “Terms”) apply to all legal transactions/deals, including all corresponding secondary and auxiliary transactions, whose direct or indirect object/ origin is the distribution (sale) of the products traded by BayWa r.e..

2) Business transactions, including all auxiliary, secondary, and executing transactions (deliveries and services), as well as the preceding offers of BayWa r.e., are based exclusively on these Terms.  They also apply to legal obligations whose origin lies directly or indirectly in business transactions between BayWa r.e. and business partner (customer) (hereinafter referred to as the “BP”), as well as for future business relations between them, should BayWa r.e. refer to these.

3) If BayWa r.e., as a trade enterprise, is economically or legally limited on the supply side by terms of preliminary suppliers, also those of components, single parts, and software, these limitations also apply to the BP (customer) of BayWa r.e., if and to the extent to which BayWa r.e. has informed the BP about the limitation upon the closing of the transaction and instructed the BP about its contents.

II.  INCLUSION / FORM / CONFLICTING TERM COMPLEXES

1) These Terms become the subject of the transaction with the BP through indications/references to them by BayWa r.e. in offers, acceptances (express or implied), order confirmations, and other equivalent documents, or through the conclusion of framework agreements/term sheets, if applicable.

2) Otherwise these Terms become the subject matter of the contract through the uncontested acceptance of the offer by BayWa r.e. or through the receipt of the declaration of acceptance by BayWa r.e. for a preceding offer (order) of the BP, upon reference to the terms in the declaration of acceptance, or through the uncontested acceptance of the order confirmation of BayWa r.e..

3) All declarations, notifications, announcements, confirmations, acceptances, and similar communications to which these Terms refer are only legally effective if they have been delivered in written or equivalent form, provided that nothing else arises from these Terms in individual cases.  Equivalent forms of communication are transmissions by fax, e-mail, or electronic data transmission.  Should there be a lack of compliance with these formal requirements, the preceding statements will have no legal effect.  Business transactions through electronic media are also included.

4) These Terms are accessible to the BP through the internet portal/web site of BayWa r.e. and may be read and accessed at any time.  Notwithstanding the previous clause, the change or amendment to these Terms is effective if it is announced through the internet portal/web site of BayWa r.e..

5) BayWa r.e. objects to any business and purchasing conditions of the BP, should the BP refer to them upon the commencement of the business connection, or during its transaction, including the reference in orders, contract letters, declarations of acceptance, and the like, if they are not consistent with the terms of BayWa r.e.

III.  OFFER AND CONTRACT CONCLUSION / ORDER CONFIRMATION

1) Unless explicitly stated otherwise, BayWa r.e. is bound to its offers, including terms and prices, for the period of 30 days upon the offering date.

2) If the order of the BP is to be qualified under the Civil and Commercial Code, BayWa r.e. may accept it within a period of 30 days or longer if BayWa r.e. and the BP have agreed so.  If BayWa r.e. does not accept the order of the BP within the specified period, it shall be deemed that the order is rejected.

3) The scope of the delivery and the due date for the payment (purchase price) to be made by the BP always depend on the written order confirmation of BayWa r.e..  In the case of a business transaction based on an offer by BayWa r.e., the scope of the delivery is subject to this offer unless BayWa r.e. confirms otherwise.

4) If there is any discrepancy between these Terms and terms and conditions in order confirmations or offers by BayWa r.e., the latter shall prevail.

5) The business transactions are based exclusively upon commercially relevant legal acts (offer, acceptance, order confirmation, commercial confirmation letter, if applicable).  Ancillary agreements or changes to the documents relevant for the contract conclusion, including these terms, require the explicit confirmation by BayWa r.e. to become legally effective.

IV.  OFFER DOCUMENTS

1) BayWa r.e. reserves the proprietary rights and copyrights to its drawings, images, calculations, and developed software.  The same goes for publications of such via electronic media.  These documents may not be made accessible to third parties.

2) BayWa r.e. obligates itself towards the BP to only make plans and other documents described as confidential accessible to third parties upon BayWa r.e’s. prior consent, irrespective of their form of communication, and to otherwise maintain confidentiality.

3) The preceding non-disclosure obligations are not valid with regard to such communications that are regarded as generally established within respective business circles.

V.  PRICES

1) Unless otherwise indicated in the offers of BayWa r.e. and/or its order confirmations, the prices used as a basis are ‘ex works’ from the responsible BayWa r.e. operating site, excluding packaging and transport costs, as well as possible insurance charges (transport insurance), which are calculated separately.  BayWa r.e. is authorised, but not obligated, to insure the deliverable products/goods against transport risks, even without explicit instructions by the BP.  The (pro-rata) insurance costs will also be charged to the BP.

2) The offer prices of BayWa r.e. are net prices (VAT inclusive), if no VAT is declared separately.  The legal amount of VAT will be shown separately on the invoice, or an equivalent commercial document, on the date of issue.

3) Cash discount deductions are only permissible after explicit written consent by BayWa r.e. or in case of an according statement in the relevant commercial document of BayWa r.e..

VI.  PAYMENT OF PURCHASE PRICE / MATURITY / DEFAULT

1) The fee to be paid by the BP, without need for further invoicing, becomes payable upon issuing of the order confirmation, even if it is not additionally designated as a bill/invoice.  The maturity of the payment obligation is independent of the time of delivery, i.e. even before its completion.

2) Should there be no order confirmation by BayWa r.e., the obligation to pay the fee matures upon transaction of the business, i.e. through offer and acceptance.

3) The maturity of the payment obligation of the BP is not connected to a contemporaneous delivery by BayWa r.e..

4) Should the BP fail to make payment to BayWa r.e. within the due date or should there be a reason to question the BP's credit status, BayWa r.e. is authorised to make payable all the accounts receivable that it is entitled to receive from the BP.  In this case, BayWa r.e. may make use of its security rights, especially the exercise of its rights to reservation of title to the agreed extent, or to the extent stated in these terms, without the precondition of default having to be given on the customer side, and without an obligation to withdraw from the contract.

5) In case of default – for which legal provisions apply – and if the agreements between BayWa r.e. and the BP or these Terms do not indicate otherwise, the BP shall pay a default interest rate of 8% on the amount due to BayWa r.e..

6) The place of payment for the BP is the place of business of BayWa r.e..  The timeliness of a payment is always determined by the receipt of payment by BayWa r.e. or the definitive validation/ redemption of a payment surrogate.  BayWa r.e. is not obliged to accept such surrogates (cheques, etc.), unless they are confirmed/backed as customary.  Such surrogates are only accepted on account of performance in all cases.  Credits to the business cheque account of BayWa r.e. only count as definitive validations if their reclamation is no longer possible or is no longer permissible according to the legal rules for national and/or international transactions of payments.

VII.  SET-OFF / RETENTION OF GOODS / NON-ASSIGNMENT

1) BayWa r.e. is entitled to set off all claims it has towards the BP against all claims of the BP, irrespective of their respective legal basis.  This is also applicable if the mutual claims are based on different legal relationships.

2) The BP is not entitled to set off against possible claims, especially based on supplementary performance, damages, and other counterclaims, or to exercise rights of retention on due claims of BayWa r.e.

3) Without the consent of BayWa r.e., the BP is not authorised to assign possible claims the BP is entitled to from the business transaction, which is based on these Terms, to third parties.

VIII.  TERMS OF DELIVERY

1) The term of delivery begins with the transmission of the order confirmation – possibly within the term stated therein –; in default of the issuing of an order confirmation it begins with the acceptance of the offer of BayWa r.e. or with the acceptance by BayWa r.e., but not before the provision of the documents, permissions, or clearances to be procured by the BP, or before the receipt of the due advance payment (advance performance) according to these terms or settled in individual agreements.

2) The term of delivery has been kept if the delivery item has left the plant or operating site of BayWa r.e. before its expiration, or if the readiness for shipping has been communicated.  In this case, the delivery is seen as having been performed.

3) In case there are no explicit agreements that state otherwise, the dates and terms stated by BayWa r.e. are no fixed dates.

4) BayWa r.e. shall not be held responsible for delivery delays due to force majeure or events that considerably complicate the performance for BayWa r.e. or make it impossible – these also include subsequently occurred difficulties during material procurement, traffic disturbances, including those of international goods traffic, namely of imports, operative disruptions, strikes, lockouts, other official orders for which BayWa r.e. is not to be held responsible, also insofar as these occur among preliminary suppliers –, also if binding terms and dates have been arranged.  Such events entitle BayWa r.e. to defer the delivery for the duration of the obstruction, with an adequate additional respite, or to partially or completely withdraw from the contract due to a part that has not yet been fulfilled.

5) If the obstruction for which BayWa r.e. is not responsible according to the previous clause No. 4 lasts longer than two months, the BP is entitled to withdraw from the contract with regard to the not yet fulfilled part after having set an adequate respite.  Further rights of the BP are excluded.  The same applies if BayWa r.e. is not responsible for the delivery delays for other reasons.

6) BayWa r.e. is entitled to provide partial deliveries at all times.

7) The delivery terms always extend for the period for which the BP does not meet its obligation towards BayWa r.e., even if they should be based on different legal bases or other business transactions with him.

8) If the BP is in default of acceptance or in any other way violates its obligations to cooperate, BayWa r.e. is entitled to demand compensation for damages incurred, including possible additional expenditures.  Further contractual or legal claims are reserved.

9) Subject to clause no.1 of Section IX, if the matters of fact stated under clauses No. 7 or No. 8 above, or according to Section VI, No. 4 or No. 5 of these Terms have occurred, the risk for objects and prices, especially the risk of accidental destruction or accidental deterioration of the goods, are transferred to the BP upon the occurrence of such fact.

IX.    PASSING OF RISK / ASSIGNMENTS OF INSURANCE CLAIMS

1) The term of delivery begins with the transmission of the order confirmation – possibly within the term stated therein –; in default of the issuing of an order confirmation it begins with the acceptance of the offer of BayWa r.e. or with the acceptance by BayWa r.e., but not before the provision of the documents, permissions, or clearances to be procured by the BP, or before the receipt of the due advance payment (advance performance) according to these terms or settled in individual agreements.

2) The term of delivery has been kept if the delivery item has left the plant or operating site of BayWa r.e. before its expiration, or if the readiness for shipping has been communicated.  In this case, the delivery is seen as having been performed.

3) In case there are no explicit agreements that state otherwise, the dates and terms stated by BayWa r.e. are no fixed dates.

4) BayWa r.e. shall not be held responsible for delivery delays due to force majeure or events that considerably complicate the performance for BayWa r.e. or make it impossible – these also include subsequently occurred difficulties during material procurement, traffic disturbances, including those of international goods traffic, namely of imports, operative disruptions, strikes, lockouts, other official orders for which BayWa r.e. is not to be held responsible, also insofar as these occur among preliminary suppliers –, also if binding terms and dates have been arranged.  Such events entitle BayWa r.e. to defer the delivery for the duration of the obstruction, with an adequate additional respite, or to partially or completely withdraw from the contract due to a part that has not yet been fulfilled.

5) If the obstruction for which BayWa r.e. is not responsible according to the previous clause No. 4 lasts longer than two months, the BP is entitled to withdraw from the contract with regard to the not yet fulfilled part after having set an adequate respite.  Further rights of the BP are excluded.  The same applies if BayWa r.e. is not responsible for the delivery delays for other reasons.

6) BayWa r.e. is entitled to provide partial deliveries at all times.

7) The delivery terms always extend for the period for which the BP does not meet its obligation towards BayWa r.e., even if they should be based on different legal bases or other business transactions with him.

8) If the BP is in default of acceptance or in any other way violates its obligations to cooperate, BayWa r.e. is entitled to demand compensation for damages incurred, including possible additional expenditures.  Further contractual or legal claims are reserved.

9) Subject to clause no.1 of Section IX, if the matters of fact stated under clauses No. 7 or No. 8 above, or according to Section VI, No. 4 or No. 5 of these Terms have occurred, the risk for objects and prices, especially the risk of accidental destruction or accidental deterioration of the goods, are transferred to the BP upon the occurrence of such fact.

X.  QUALITY, MEASUREMENTS, PROPERTIES, DISPATCH ROUTES

1) The quality and measurements of the products that are subject of the transaction arise from material sheets, certificates, etc., and other product-specific standards and calculations agreed upon, or which are the subject of the offer/order confirmation of BayWa r.e..  Should no material sheets, certificates, etc. exist, trade practice applies.

2) The reference to material sheets, or factory inspection documents of any kind, and/or the description of the deliveries that are subject of the contract with according specifications do not count as warranties for certain properties.  Also, in case the delivery or performance is intended for a special type of use by the purchaser and it becomes the subject of the contract, this does not signify a warranty for properties either.  Should there be no explicit written communications in the according commercial documents of BayWa r.e., BayWa r.e. is not obligated towards the BP through guarantees of any kind or warranties for properties.

3) Liability through warranties for properties or other assumptions of guarantees is excluded in all cases which are not based on a written assurance by BayWa r.e..

4) BayWa r.e. may choose/determine the dispatch route and the means of transport at its own discretion if other specifications for shipping the products that are subject of the transaction is not at disposal.

XI.  NOTICE OF DEFECTS / SUPPLEMENTARY PERFORMANCE

BayWa r.e. has the following obligations for supplementary performance for quality and quantity defects of the delivery item as well as for the lack of warranted properties, or in the case of wrong delivery:

1) The BP shall examine the delivery item immediately after delivery.  The BP shall notify BayWa r.e. of the defects within seven calendar days upon delivery of the goods.  Subject to the warranty period, if defects cannot be discovered within this period despite the most thorough examination, the BP shall notify BayWa r.e. of such defect immediately after discovery.  The duty of giving notice of defects also applies for such business relationships that are not based on the law for the sale of goods (e.g. those that are to be judged according to contracts for work and services, agency law, etc.).  If the notice of defects is not given in time, the BP is excluded from asserting claims for supplementary performance.  The BP bears the full burden of proof for any preconditions for claims, especially for the defect itself, for the time of identification of the defect, and for the timeliness of the notice of defects.

2) Upon justified and timely notice of defects, BayWa r.e. will determine at its own discretion whether to deliver supplementary performance through rectification of the defects or replacement.

3) Should the supplementary performance fail, the BP may demand to lower the price (reduction) or to cancel the contract (withdrawal).  Should the infringement of contract be insignificant, however, especially in the case of only slight defects, the BP has no right of withdrawal.  Should the BP choose to withdraw from the contract due to a defect after a failed supplementary performance, the BP has no further entitlement to claims for damages due to the defect, unless BayWa r.e. has acted with gross negligence.  Should the BP demand compensation for damages after a failed supplementary performance, presuming fault on the side of BayWa r.e., the goods shall remain with the BP, if reasonable.  The compensation for damages is limited to the difference between the purchase price and the value of the defective item.  This does not apply if BayWa r.e. has violated a contractual primary obligation with gross negligence.

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5) For contract subjects that have been sold as declassed material, the BP has no rights to supplementary performance with regard to the indicated defects and such ones he would generally have to expect.

6) Any further mandatory claims of the BP resulting from product liability remain unaffected therefore.

7) In case of defects occurring on so-called wear parts of products or units delivered by BayWa r.e., BayWa r.e. is generally only obligated to deliver replacements or perform rectifications at its own discretion, under exclusion of further claims.  This also applies in the case of repeated spare part deliveries or replacements of wear parts within the limitation periods for claims for defects specified within these terms, otherwise contractually agreed upon, or specified as mandatory in legal provisions.  Wear parts are such single parts/components which can be attested such a function/property according to the current opinion in the relevant circles (e.g. wires, bolts, winches, screws).  This applies especially to such parts which, due to their usage, are particularly exposed to emission, according to their function (e.g. through moisture, heat, fire, storms, and similar weather effects) and/or need to be exchanged during the operation of the system.

8) BayWa r.e. shall carry the transport, travel, labour, installation, and material costs that are incurred during supplementary performance.

XII.  GENERAL LIMITATION OF LIABILITY / STATUTE OF LIMITATIONS

1) BayWa r.e. shall be liable for damages resulting from the violation of contractual or non-contractual obligations only in cases of intent or gross negligence, unless the applicable law states otherwise.  The liability for negligence, as well as the liability for gross negligence of BayWa r.e. employees that did not act in an ordinary course of employment, is excluded.  The exclusion/ limitation of liability stipulated hereby also applies to damages caused by delays or deferrals.

2) The liability of BayWa r.e. – except in cases of intent – does not include such damages which could not typically be expected for the business at hand, or against which the BP is insured, or can usually be insured against.  The liability for consequential damages caused by defects is, in all cases, excluded for negligence, and also for gross negligence to the extent permitted by law.

3) All claims based on defects against BayWa r.e. expire one year after the delivery, under observance of the specifications in Section VIII, unless BayWa r.e. has admitted other (longer) limitation periods in the individual case, or such apply due to mandatory provisions of a law.

XIII.  RESERVATION OFF PROPRIETARY RIGHTS

1) All physical objects of services or deliveries (products/goods) remain the property (“Reserved Property”) of BayWa r.e. until the fulfilment of all receivable claims, including incurred claims that fall due at a later time or conditional claims.  This also applies if payments are made for specially designated claims.  In case of a current account, the Reserved Property is seen as a security for the balance claim.

2) In light of the preceding above paragraph, BayWa r.e. can prohibit the sale and/or incorporation and/or mixing of the Reserved Property at any time if the BP has defaulted or fallen behind on its payment obligations towards it, or if the BP has become insolvent.

3) In case the Reserved Property is mixed, processed, and/or incorporated with other property not belonging to BayWa r.e., BayWa r.e. is entitled to ownership of the new property (“Processed Property”) to the amount of the ratio between the invoice value of the Reserved Property and the invoice value of the other property, or Reserved Property, including the expenditures for processing (incorporation, mixing).  Should the invoice value of the other property not be known, its value shall be calculated based on a market value of similar property.

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5) Subject to BayWa r.e.’s prohibition pursuant to Section XIII, No. 1, if the BP’s business is to resell the Reserved Property and/or the Processed Property, the BP may resell the Reserved Property and or Processed Property in its regular course of business.  BayWa r.e. and the BP may agree on a case by case basis to assign the BP’s claim arising from the resale of the Reserved Property and/or Processed Property (“the BP’s Claim”) to BayWa r.e. and that the BP is responsible to inform its debtor of such assignment.  No assignment of the BP’s Claim to BayWa r.e. shall prejudice any rights or claims BayWa r.e. has against the B.P.  This correspondingly applies to the case in which the Reserved Property is used by the BP for the fulfilment of a contract for work and services/materials, and especially to construction companies.

6) The BP is not entitled to give away the Reserved Property to third parties, to pledge it, or to use it for barter transactions.  Furthermore, he is not permitted to assign the BP’s Claim to a factor bank as a factoring customer, unless the factor bank directly takes on the payment obligations of the customer and that the BP has obtained prior written consent from BayWa r.e..

7) If the debtors (“BP’s Debtor”) pay the BP for the BP’s Claim assigned to BayWa r.e. with cheques or other payment surrogates, the property/ ownership of this cheque or surrogate is transferred to BayWa r.e. as soon as the BP has obtained it.

8) Upon notification of assignment of the BP’s Claim to the garnishee, BayWa r.e. is entitled to collect payment from resale directly from the BP’s Debtor.  The BP is required to provide BayWa r.e. with all documents necessary to collect such payment.  Should the BP know of any disturbances in collecting the payment from the BP’s Debtor, the BP must notify BayWa r.e. immediately.

9) The assertion of the reservation of title, especially the retrieval of Reserved Property, the collection of claims from the BP’s Debtor, does not prejudice BayWa r.e.’s rights and claims against the BP.  In addition, BayWa r.e. is entitled to take back the Reserved Property without having to terminate the contract with the BP, if the BP is in default of paying the purchase price or other outstanding debt to BayWa r.e. or breach any provision of these Terms.

10) If the BP puts his claims from a resale of such materials, for which BayWa r.e. is entitled to simple, extended, or prolonged reservation of title, into a current account relationship, he hereby assigns to BayWa r.e. his current account receivables to the amount of the value of the reserved items.  If balancing has been completed, the recognised balance takes its place, which is seen as assigned to the amount which made up the original current account receivable.

11) BayWa r.e. may demand the BP to assign the BP’s Claim to BayWa r.e. for securing BayWa r.e.’s claim against the BP to the amount of the invoice value of the purchase item.

12) BayWa r.e. undertakes to release the securities it is entitled to upon demand of the BP to such an extent as the realised value of their securities exceeds the claims to be secured by more than 10%; BayWa r.e. chooses the securities to be released at its own discretion.

XIV. WITHDRAWAL

In addition to the cases specified in Section VIII, No. 4 and No. 5, BayWa r.e. is entitled to terminate any and all contract entered into with the BP without further notice if the BP has fallen into default with its payment obligations from the business transaction or other business transactions with BayWa r.e..  Any further claims for damages by BayWa r.e. remain unaffected thereof.

XV. PLACE OF PERFORMANCE

The place of performance for all deliveries and services by BayWa r.e. is the place of business of BayWa r.e..

XVI. DISPUTE RESOLUTIONS

Any dispute arising out of or in connection with the business transaction between BayWa r.e. and the BP, including any question regarding its existence, validity or termination, shall be referred to and finally resolved byarbitration in accordance with the Arbitration Rules of the Thailand Arbitration Center (“THAC Rules”) in force at the time, and shall be under the administration of Thailand Arbitration Center.

XVII. SEVERABILITY CLAUSE

Should one (or more) term(s) of this complex of terms and conditions be invalid or become invalid, the legal validity of the remaining terms remains unaffected thereof.  The relevant legal provisions shall take the place of the invalid term, if they are not legally waived by the remaining terms.

XVIII. THAI LAW

The law of Thailand, excluding the UN CISG, shall be exclusively applied to the legal relationships between BayWa r.e. and the BP.

Last updated: 29. January 2018