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GENERAL TERMS AND CONDITIONS OF CALYXO GMBH FOR THE COMMERCIAL SALE OF THIN FILM MODULES

1. SCOPE

The following provisions govern the contractual relations for the sale of thin film modules between CALYXO GmbH (hereinafter referred to as "CALYXO") and companies, i.e. natural persons or legal persons or partnerships with legal capacity with whom business relationships are entered into and who are exercising a commercial or self-employed activity (hereinafter referred to as "Buyer"). Other terms and conditions of the buyer are not valid. Exceptions are possible by written consent of CALYXO. Upon conclusion of the contract, the buyer accepts these terms and conditions. The terms and conditions only apply to companies in terms of § 310 para. 1 BGB (German Civil Code).

2. CONCLUSION OF CONTRACT

  1. Offers of contract by CALYXO are non-binding. The order by the buyer constitutes a binding offer. Contracts are not concluded before the order confirmation or delivery by CALYXO. The order confirmation by CALYXO is exclusively decisive for the scope of the performance due under this contract.
  2. Information on characteristics and performances of the goods serve as illustration and are not binding unless otherwise expressly agreed in writing, for example in the technical product description or the data sheets. Likewise, public statements, targeting or advertisement are no contractual indication of the condition of the goods. Minor deviations from indications on dimensions, weights, condition and quality remain reserved.
  3. CALYXO reserves all property rights and copyrights in figures, drawings, calculations and other documents – in electronic form as well. This especially applies to such documents referred to as "confidential". Before disclosing them to third parties, the buyer requires the express written consent by
  4. CALYXO reserves its right to changes even after sending an order confirmation unless these changes contradict the order confirmation or the specification of the buyer. The buyer will agree to modification proposals by CALYXO beyond that as far as they are reasonable to the buyer.

3. PRICES AND TERMS OF PAYMENT

  1. Prices are calculated ex works plus applicable legal VAT as well as the resulting transport costs. The buyer is obliged to pay 100 % of the agreed purchase price including all incidental expenses in advance. If the buyer fails to pay within the designated period, CALYXO is entitled to charge default interest at the legal rate. If CALYXO can prove a higher damage caused by delay, it is entitled to claim for it.
  2. In case of contracts with an agreed delivery time of more than three months, CALYXO reserves the right to adjust the prices according to the cost increases occurred upon conclusion of the contract due to additional charges for personnel, transport and storage costs, the introduction or change of taxes or material price increases. However, this price increase is only admissible up to an increase by maximum 5% of the agreed price.
  3. If part payments are agreed, the complete residual debt – regardless of the maturity of possible bills of exchange – immediately becomes due for payment if the buyer falls completely or partially behind with at least two successive instalments and the amount of the payment in default accounts for at least one-tenth of the agreed purchase price.
  4. The buyer is only entitled to rights of set-off and retention if his counterclaims are determined without further legal recourse, undisputed or accepted by CALYXO.

4. DELIVERY

  1. Delivery dates and periods of delivery are agreed order-related in written form between the buyer and CALYXO. Periods of delivery commence upon conclusion of the contract. If alterations of contract are subsequently agreed upon in written form, a new delivery date or a new period of delivery must be agreed upon at the same time as required.
  2. The compliance with stipulated periods for the delivery requires the timely and proper completion of the buyer's obligations.
  3. If CALYXO falls behind schedule with the delivery of thin film modules, the liability for each completed week of delay is limited to half a percent of the invoice value of the deliveries affected by the delay, however, in total to a maximum of five percent of the invoice value of the deliveries affected by the delay. This penalty represents the sole remedy of the buyer related to this default.
  4. Deliveries must also be accepted if they show insignificant defects.
  5. Part deliveries are admissible if they are reasonable to the buyer.
  6. If the buyer is in default of acceptance, CALYXO is entitled to demand compensation for the damage incurred. Upon the occurrence of the default of acceptance, the risk of accidental deterioration or accidental destruction is transferred to the buyer.

5. TRANSFER OF RISK

  1. The risk is transferred to the buyer when the goods have been dispatched or picked up. At the buyer's request and expense, deliveries are insured against the usual risks of transport.
  2. The buyer is obliged to accept the goods provided by CALYXO by no later than 8 days after their provision.
  3. The delivery takes place ex works (Incoterms 2000).

6. RETENTION OF TITLE

  1. Until satisfaction of all accounts receivable (including all balance debts on current accounts) which are payable to CALYXO by the buyer for any legal ground at present or in the future, the delivered goods remain property of CALYXO. Processing or transformation is always performed for CALYXO as manufacturer, however, without obligations for it. If the property of CALYXO expires due to combination, it is hereby agreed that the property of the buyer in the uniform product is transferred to CALYXO according to the value percentage (invoice value). The buyer stores the (joint) property of CALYXO free of charge. Any goods, which CALYXO is entitled to have (joint) property in, are hereinafter referred to as goods subject to retention of title.
  2. The buyer is entitled to process or sell the goods subject to retention of title in the normal course of business as long as he is not in default. Pledges or transfers by way of security are prohibited. By now, the buyer fully assigns the claims incurred as a result of a resale or other legal ground with respect to the goods subject to retention of title (including all balance debts on current accounts) to CALYXO by way of security. CALYXO hereby revocably authorises the buyer to collect the receivables assigned to CALYXO on his own behalf in order to account them. This direct debit authorisation can only be revoked if the buyer fails to properly comply with his payment obligations.
  3. If third parties access the goods subject to retention of title, the buyer is made aware of the property of CALYXO and must notify it immediately. The buyer bears the costs and damages.
  4. CALYXO is entitled to withdraw from the contract and demand the goods in case of conduct of the buyer contrary to contract, especially in case of delayed payment. After the acceptance of the returned goods, CALYXO is entitled to make use of these goods. The proceeds must be
    applied towards the buyer's accounts payable – deducting reasonable utilisation costs.
  5. If the value of all securities existing for CALYXO sustainably exceeds the existing accounts receivable by more than 10 %, CALYXO will release securities at CALYXO´S option by the buyer's request.

7. CONTRACTUAL LIEN

Due to its accounts receivable resulting from the contractual relationship with the buyer, CALYXO is entitled to a contractual lien in the objects entered into its possession due to the contractual relationship. The contractual lien can also be asserted due to accounts receivable resulting from work, replacement deliveries and other performances carried out previously, as far as they are related to the subject of the contract. The contractual lien only applies to other claims against to buyer, if they are undisputed or legally determined.

8. WARRANTY

  1. Warranty is valid for a period of two years from delivery of the thin film modules. In the event of a defective delivery, CALYXO, in its sole discretion, is at first obliged to either repair the damage or deliver thin film modules which are free from defects. In the event of failure of replacement delivery or repair, the buyer can assert his legal warranty rights (reduction of the purchase price or withdrawal as to the defective thin film modules). The buyer is obliged to return the defective thin film modules to CALYXO. CALYXO bears the costs for this delivery.
  2. Generally, only such properties are considered agreed condition of the goods which arise from the technical product description or the data sheet. Public statements, targeting or advertisement do not contain any binding description of the agreed condition of the goods.
  3. This section neither delivers a "guarantee of quality" related to the thin film modules in terms of § 443 BGB nor the "acceptance of a guarantee" in terms of § 276 BGB.
  4. The assertion of claims for defects by the buyer requires his proper compliance with his obligations of inspection and notice of defects owed according to § 377 HGB (German Commercial Code).
  5. Any further claims on the part of the buyer are excluded, especially such claims based on subsequent damages caused by defects, provided they were not caused due to the non-compliance with warranted specifications.
  6. If the buyer sells the delivered goods in modified form or after combining them with other goods, the buyer indemnifies CALYXO internally from product liability claims of third parties, provided the buyer is responsible for the defects which have caused the liability.

9. OTHER LIABILITIES

  1. Damage claims by the buyer, on whatever legal grounds, are excluded for the rest. This provision does not apply in cases of intent, gross negligence or material breach of contract. The compensation for damages for material breach of contract is limited to the foreseeable damage typical for the contract. A change in the burden of proof to the detriment of the buyer is not associated with the preceding provisions
  2. If the buyer sells the delivery items, if he changes or combines them with other goods, he indemnifies CALYXO in their internal relationship from product liability claims of third parties if the buyer is responsible for the defect which caused the liability.
  3. A modification of the goods and any identification considered an origin mark of the buyer or a third party are prohibited.

10. DISCLAIMER

The disclaimers or limitations of liability governed in these terms and conditions do not apply to (i) damages resulting from the injury to life, body or health based on a negligent breach of duty by CALYXO or an intended or negligent breach of duty by a legal representative or assistant of CALYXO, (ii) other damages based on a grossly negligent breach of duty by CALYXO or an intended or grossly negligent breach of duty by a legal representative or assistant of CALYXO, (iii) cases of liability according to the Product Liability Act, or (iv) the case of acceptance of a guarantee.

11. RIGHT OF WITHDRAWAL AND TERMINATION

  1. CALYXO is entitled to completely or partially withdraw from the contract, if (i) the institution of insolvency proceedings against the assets of the buyer is filed, (ii) it becomes known that the buyer was classified unworthy of credit when the contract was concluded or (iii) the buyer discontinues his business activities.
  2. For continuous delivery relations, the right of extraordinary termination with immediate effect supersedes the right of withdrawal.

12. SEVERABILITY CLAUSE, PLACE OF PERFORMANCE, PLACE OF JURISDICTION

  1. If any part of these terms and conditions is invalid or contradicts applicable law, the remaining clauses are not affected by this.
  2. Place of performance and place of jurisdiction of CALYXO GMBH is Bitterfeld-Wolfen. These terms and conditions are subject to German law. The application of the CISG is excluded.

Terms and Conditions | PAS-11-01-0106-EN | Rev.: 1.0