Lambion

General Terms and Conditions

Delivery and assembly conditions of Lambion Energy Solutions GmbH, 34454 Bad Arolsen, Germany, vis-à-vis a person or legally capable business partnership exercising their commercial or independent professional activity (see German Commercial Code: Unternehmer i.S.v. § 14 BGB); a legal person under  public law or a special fund under public law.

 

I. General

1. All deliveries, services and assembly activities are subject to the conditions specified herein as well as any other separately concluded contractual agreements. Purchase conditions of the CUSTOMER that diverge from these specified conditions will not become part of the contractual arrangement between LAMBION and the CUSTOMER as a result of the acceptance of the order. A contract is concluded with the written order confirmation of the supplier (LAMBION) if no other special arrangement has been made.

2. LAMBION retains rights of ownership and copyright for all samples, cost estimates, drawings and other information in physical and non-physical form including information in electronic form. Such information may not be made available to third parties. LAMBION agrees to make any information and materials designated confidential by the CUSTOMER available to third parties only with the CUSTOMER’s consent.  

II. Price and Payment

1. Unless otherwise specified, prices are ex works including loading at the factory but excluding packaging and unloading. In addition, prices are subject to the respective legally applicable value added tax.

2. Unless otherwise specified, payment is to be made to LAMBION’s account without any deductions on the following basis:

1/3 following receipt of the order confirmation

1/3 as soon as the CUSTOMER has received notification that the main parts are ready for shipment

The remaining amount to be paid within one month following the passing of risk from LAMBION to the CUSTOMER.
 

3. Assembly costs will be invoiced on the basis of time required in accordance with the attached price list if no explicit agreement has been made for an all-inclusive price.

4. The right to withhold payments or to set off payments on the basis of counterclaims is granted to the CUSTOMER only insofar as these counterclaims are undisputed or have been judged to be legally valid.


III. Delivery Time, Delivery Delays


1. The delivery time is based on the agreements by the contracting parties. LAMBION’s observance of the arrangements depends on the clarification of all commercial and technical questions between the contracting parties and the CUSTOMER’s fulfilment of all incumbent obligations, such as submitting required certificates or approvals from the authorities or making the agreed advance payment. If these obligations have not been fulfilled, then the designated time of delivery shall be extended in an appropriate amount. This does not apply if the delays have been caused by LAMBION’s actions.

2. Compliance with agreed delivery deadlines is conditional on LAMBION’s on-time receipt of goods from its suppliers. LAMBION will inform the CUSTOMER of any anticipated delays as soon as possible.

3. The delivery deadline has been met when then delivered goods have left the factory of the supplier by the specified deadline or the notification of readiness to ship the goods has been given. Insofar as an acceptance of the delivered goods is required, the specified acceptance date (or alternatively the notification of acceptance readiness) applies -- except in the event that acceptance is justifiably refused.

4. If the shipment of the delivery goods or their acceptance is delayed owing to causes for which the CUSTOMER is responsible, then any resulting costs will be billed to the CUSTOMER beginning with the month following the notification of shipment or readiness for acceptance.

5. If delivery deadlines are not met owing to force majeure, industrial disputes or other events that are beyond LAMBION’s control, then the time of delivery will be extended in an appropriate amount. LAMBION will inform the CUSTOMER of the beginning and the end of such circumstances as soon as possible.

6. The CUSTOMER can withdraw from the contract with no period of notice if full performance is finally impossible for LAMBION prior to transfer of risk. Furthermore, the CUSTOMER can withdraw from the contract if a portion of the delivery proves to be impossible and the CUSTOMER has a justified interest in refusing the partial delivery. If this is not the case, then the CUSTOMER must pay the incurred costs for the partial delivery based on the contract price. The same applies in the event of LAMBION’s incapacity. Otherwise, Section XII, clause 2 applies.   

If the impossibility or incapacity arises during a delay in acceptance of the delivery or if the CUSTOMER is solely or principally responsible for these circumstances, then the CUSTOMER’s obligation to provide compensations remains in force.

7. If LAMBION is delayed in the execution of its contractual obligations and the CUSTOMER suffers damages as a result, then the CUSTOMER is entitled to demand a lump sum compensation for the delay. For each full month of delay, this shall amount to 0.5% of that portion of the complete delivery that cannot be used as scheduled or as contractually agreed as a result of the delay. This amount shall not exceed 5% of the value of the delayed portion of the delivery. LAMBION retains the right to demonstrate a lower level of damage resulting from the delay.

If the CUSTOMER - taking account of the statutory exceptions - grants LAMBION an appropriate period for performance following the deadline, and if this deadline is not adhered to, then the CUSTOMER is entitled to withdraw from the contract within the framework of the relevant legal regulations.

Further claims arising in connection with delayed delivery are regulated exclusively in accordance with Section XII, clause 2 of these Terms and Conditions.


IV. Assembly, Support from the Customer

1. The CUSTOMER must support at his own expense the assembly personnel during the execution of the assembly.

2. The CUSTOMER must take all necessary precautions to protect persons and property at the assembly location. He must inform the assembly manager regarding any special safety regulations that are in force insofar as these are of significance for the assembly personnel. The CUSTOMER must inform LAMBION regarding any violations of the assembly personnel of such safety regulations. In the case of serious violations, he can refuse access to the assembly location to those persons who are violating the regulations in consultation with the assembly manager.


V. Technical Assistance from the Customer during Assembly

1. The CUSTOMER is required to provide technical assistance at his own expense, in particular:

a) To provide the necessary appropriately skilled personnel (masons, carpenters, metalworkers and other specialists, as well as general handymen) in the required number and for the required time necessary for the assembly; these personnel must follow the instructions of the assembly manager. LAMBION assumes no liability for these personnel. If a defect or damage occurs as a result of the assembly manager’s instructions, then Section XI or Section XIII shall apply.

b) To perform all earthwork, construction work, bedding work, scaffolding including the procurement of the necessary building materials.

c) To provide all the necessary equipment and heavy tools (e.g. lifting devices, compressors, portable forges) as well as the necessary auxiliary equipment and materials (e.g. scaffolding boards, wedges, underlays, cement, plastering and sealing material, lubricants, fuels, driving ropes and belts).

d) To provide heat, lighting, operating power, water including the necessary connections.

e) To provide appropriate premises which are dry and can be secured by lock for the storage of the assembly team’s tools.

f) To transport the assembly parts to the assembly location, to secure the assembly location and materials from damaging influences of all sorts, to clean the assembly location.

g) To provide appropriate break rooms and working spaces for the assembly personnel that are secure against theft and are well-heated and well-lit, with washing and sanitary facilities and first aid resources.

h) To provide all materials and undertake all actions necessary for adjustments to the facility that is to be assembled and for the testing of the facility as contractually planned.

2. The technical assistance of the CUSTOMER must ensure that the assembly work can be started promptly after the arrival of the assembly personnel and be performed without delay until the acceptance by the CUSTOMER. Insofar as special plans or instructions from LAMBION are required, these will be provided in good time to the CUSTOMER.

3. If the CUSTOMER does not fulfill his obligations, then after giving notice LAMBION is entitled (but not obligated) to perform these obligations itself at the CUSTOMER’s expense. In all other respects, the statutory rights and claims of LAMBION remain unaffected.



VI. Assembly Deadlines, Assembly Delays

1. The assembly deadline has been met when the assembly is ready for acceptance by the CUSTOMER by the specified date, or in the event that a contractually planned testing of the facility has been arranged, that this test is ready to be conducted.

2. If assembly is delayed as a result of measures taken in connection with industrial disputes, in particular strikes and lockouts, or as a result of circumstances for which LAMBION is not responsible, then an appropriate extension of the assembly deadline will be made insofar as these obstacles can be shown to have had a material impact on the completion of the assembly. This shall also apply if such circumstances occur after LAMBION has become delayed.

3. If the CUSTOMER suffers a damage as result of LAMBION’s delay, then the CUSTOMER is entitled to demand a lump-sum compensation. For each full month of delay, this shall amount to 0.5% of that portion of the assembly that cannot be used as scheduled as a result of the delay. This amount shall not exceed 5% of the value of the delayed portion of the assembly. LAMBION retains the right to demonstrate a lower level of damage resulting from the delay.

If the CUSTOMER - taking account of the statutory exceptions - grants LAMBION an appropriate period for performance following the deadline, and if this deadline is not adhered to, then the CUSTOMER is entitled to withdraw from the contract within the framework of the relevant legal regulations.

Further claims arising in connection with delayed delivery are regulated exclusively in accordance with Section XIII, clause 2 of these Terms and Conditions.


VII. Passing of Risk, Acceptance of Delivery

1. The risk is passed to the CUSTOMER when the delivery goods have left the factory. This is also the case if partial deliveries are made or if LAMBION has taken on other services, such as for example the shipment costs or the delivery and assembly.

Insofar as a formal acceptance is to take place, this determines the passing of risk. This must occur promptly at the scheduled time of acceptance, or alternatively after notification by LAMBION that the goods are ready for acceptance. The CUSTOMER may not refuse the acceptance on the basis of the citing immaterial defects.

2. If the shipment is delayed or does not take place or if the acceptance is delayed or does not take place as a result of circumstances for which LAMBION is not responsible, the risk passes to the CUSTOMER from the date when notification of shipment or readiness for acceptance has been made. LAMBION will arrange any insurance that the CUSTOMER requests at the expense of the CUSTOMER.

3. Partial deliveries are allowed insofar as these are reasonably acceptable to the CUSTOMER.



VIII. Acceptance of Assembly

The CUSTOMER must accept the assembly as soon as the end of the assembly has been indicated to him and any contractually arranged testing of the assembled facility has taken place. If the assembly is shown to be not in conformity with the contract, then LAMBION must remove and correct any defects. This does not apply when the defect is immaterial to the interests of the CUSTOMER or when the non-conformity has been caused by circumstances for which the CUSTOMER is responsible. If an insignificant defect is found, this does not entitle the CUSTOMER to refuse acceptance.
 
2. If acceptance is delayed not due to any fault of LAMBION, then acceptance is judged to have occurred after two weeks have elapsed from the time that the completion of assembly was announced.

3. Following acceptance, LAMBION retains no further liability for identifiable defects insofar as the CUSTOMER has not reserved the right to make a particular claim regarding some defect.

IX. Retention of Title of the Delivered Goods

1. LAMBION retains title of the delivered goods until all payments have been made as specified in the delivery contract.

2. LAMBION is entitled to insure the delivered goods at the expense of the CUSTOMER against theft, breakage, fire, water and other damage insofar as the CUSTOMER has not demonstrably contracted for such insurance himself.

3. The CUSTOMER may not sell, or pledge, or offer the delivered goods as a security. In the event of  attachments, confiscation or other disposition of the delivered goods by third parties, LAMBION must immediately be informed by the CUSTOMER.

4. In the event of any breach of contract by the CUSTOMER, in particular in the case of delay in payment, LAMBION is entitled to take back the delivered goods after issuance of a formal warning and the CUSTOMER is obliged to surrender the delivered goods.

5. LAMBION can only demand the return of the delivered goods based on the retention of title when LAMBION has withdrawn from the delivery contract.

6. An application for the opening of insolvency proceedings on the part of the CUSTOMER shall entitle LAMBION to withdraw from the contract and to demand the immediate return of the delivered goods.


X. Claims for Defects regarding the Delivered Goods

For defects in quality and title, LAMBION provides the following warranty subject to Section XII and excluding any other claims:

Defects in Quality

1. Any parts that are found to be defective resulting from circumstances prior to the passage of risk to the CUSTOMER shall as chosen by the supplier be replaced or repaired so as to correct the defect at no cost. LAMBION shall be notified immediately in writing regarding the discovery of any such defects.

2. After notifying LAMBION, the CUSTOMER must give LAMBION the necessary time and opportunity to undertake all the improvements and replacement deliveries that seem to be necessary to LAMBION. Otherwise LAMBION is released from any liability from the resultant consequences. Only in urgent cases where the operating safety is endangered or to prevent excessively large damages does the CUSTOMER have the right to eliminate an apparent defect himself or to have a third party do so. In such cases LAMBION must nonetheless be notified immediately and the CUSTOMER will have the right to demand compensation from LAMBION for the necessary efforts taken.

3. From the direct costs arising from an improvement or replacement delivery, LAMBION shall bear the costs of the replacement part including shipment, insofar as the claim proves to be justified. In addition, LAMBION shall bear the costs of the disassembly and reassembly as well as the costs of any necessary coordination of assembly personnel and support staff including transportation costs, insofar as this does not result in a disproportionate burden for LAMBION.

4. In keeping with the legal regulations, the CUSTOMER has the right to withdraw from the contract if LAMBION - taking account of the statutory exceptions - lets an appropriately specified deadline pass without successfully providing an improvement or replacement delivery to overcome a quality defect. If the defect is not significant, then the CUSTOMER only has the right to reduce the contract price. Otherwise the CUSTOMER has no right to reduce the contract price.

Further claims are defined in accordance with Section XII, clause 2 of these Terms and Conditions.

5. No warranty is assumed or provided in particular in the following cases:

Inappropriate or incorrect use, faulty assembly or start-up by the CUSTOMER or third parties, natural wear and tear, faulty or negligent handling, incorrect maintenance, inappropriate fuel, deficient construction work, inappropriate building ground, chemical, electrochemical or electrical influences - insofar as LAMBION is not responsible for these conditions.

6. If the CUSTOMER or a third party endeavors to correct a defect unsuccessfully, LAMBION shall bear no liability for the resulting effects. Likewise, LAMBION will not be liable for changes made to the delivered goods or the software included in the delivery without LAMBION’s prior consent.

Defects in Title

7. If the use of the delivered goods results in violation of commercial property rights or copyrights in Germany, LAMBION will provide a legal means to continue to use the goods at its own expense or will modify the goods in a way acceptable to the CUSTOMER so that no copyright or property right violation exists.

If this is not possible under economically acceptable conditions or in an appropriate time frame, then the CUSTOMER is entitled to withdraw from the contract. Under the hereby specified conditions, LAMBION also has a right to withdraw from the contract.

Furthermore, LAMBION will exempt the CUSTOMER from any undisputed or legally valid claims made by affected property right holders.

8. LAMBION’s obligations cited in Section X, clause 7 are final, subject to the provisions of Section XII, clause 2, in the event of violations of property rights or copyrights.

These obligations shall be in force if and only if:

- The CUSTOMER informs LAMBION of any violations of property rights or copyrights that have been asserted.

- The CUSTOMER supports LAMBION to an appropriate extent in the defense against the asserted claims and/or enables LAMBION to carry out the modifications measures in accordance with Section X, clause 7.

- All defense measures remain available to LAMBION including out of court settlements.

- The defect in title is not based on an instruction issued by the CUSTOMER

- The violation has not been caused by a modification in the delivered goods undertaken unilaterally by the CUSTOMER or by the CUSTOMER’s use of the delivered goods in a way that has not been contractually agreed.

XI. Claims regarding Defects or Assembly Work

1. Following acceptance of the assembly by the CUSTOMER, LAMBION will be liable for defects in the assembly, excluding all other claims of the CUSTOMER notwithstanding clause 5 below and Section XIII, in that it must correct any faults in the assembly work. The CUSTOMER must notify LAMBION promptly regarding any faults that have been detected.

2. LAMBION is not liable for such claims when the defect is not of material interest to the CUSTOMER or when it is the result of circumstances for which the CUSTOMER is responsible.

3. In the event of incorrect modifications or maintenance work undertaken by the CUSTOMER or third parties without LAMBION’s prior approval, the assembly company will cease to bear any liability for the resulting effects of such actions. Only in urgent cases where the operating safety is endangered or to prevent excessively large damages or when LAMBION has let an appropriately specified deadline pass without successfully correcting the fault itself does the CUSTOMER have the right to eliminate an apparent defect himself or to have a third party do so. In such cases LAMBION must nonetheless be notified immediately and the CUSTOMER will have the right to demand compensation from LAMBION for the necessary efforts taken.

4. From the direct costs arising from the correction of a defect, LAMBION shall bear the costs of the replacement part including shipment, insofar as the claim proves to be justified. In addition, LAMBION shall bear the costs of the disassembly and reassembly as well as the costs of any necessary coordination of assembly personnel and support staff including transportation costs, insofar as this does not result in a disproportionate burden for LAMBION.

5. If LAMBION - taking account of the statutory exceptions - lets an appropriately specified deadline pass without successfully correcting the defect, the CUSTOMER has the right to reduce the amount of payment in keeping with the relevant legal regulations. This right to reduce payment also applies for other cases of unsuccessful correction of defects. The CUSTOMER only has the right to withdraw from the contract when the assembly is demonstrably of no interest to him despite the price reduction.

XII. Liability and Liability Exclusion regarding the Delivered Goods

1. If the delivered goods can not be used by the CUSTOMER as specified in the contract due to the fault of LAMBION resulting from failing to carry out or incorrectly carrying out suggestions and agreements made before or after the signing of the contract or from a breach of secondary contractual obligations in particular regarding instructions for operating and servicing the delivered goods, then the provisions of Section X and Section XII, clause 2 shall apply accordingly and to the exclusion of all and any other claims of the CUSTOMER.

2. For damages which have not occurred to the delivered goods themselves -on whatever legal grounds - LAMBION is liable only:

a) in the event of intent;

b) in the event of gross negligence of the owner, the organs or the leading executives of the company;

c) in the event of culpable injury to life, body, or health;

d) in the event of defects which have been concealed with malicious intent or the absence of which has been guaranteed;

e) to the extent that liability exists pursuant to the German Product Liability Act for damages to persons or personal property.

In the event of culpable breach of primary contractual obligations, LAMBION is also liable for gross negligence on the part of other non-managerial staff and for slight negligence. In the latter case, this is limited to damages typical of such a contract which could reasonably have been foreseen.

All other claims are excluded.


XIII. Liability and Liability Exclusion regarding Assembly Work

1. If during the assembly a part delivered by LAMBION is damaged by the fault of LAMBION, then LAMBION must repair or replace the part as it chooses at its own cost.

2. If the assembled item can not be used by the CUSTOMER as specified in the contract due to the fault of LAMBION resulting from failing to carry out or incorrectly carrying out suggestions and agreements made before or after the signing of the contract or from a breach of secondary contractual obligations in particular regarding instructions for operating and servicing the assembled item, then the provisions of Section XI and Section XIII, clauses 1 and 3 shall apply accordingly and to the exclusion of all and any other claims of the CUSTOMER.

3. For damages which have not occurred to the assembled item itself -on whatever legal grounds - LAMBION is liable only:

a) in the event of intent;

b) in the event of gross negligence of the owner, the organs or the leading executives of the company;

c) in the event of culpable injury to life, body, or health;

d) in the event of defects which have been concealed with malicious intent or the absence of which has been guaranteed;

e) to the extent that liability exists pursuant to the German Product Liability Act for damages to persons or personal property.

In the event of culpable breach of primary contractual obligations, LAMBION is also liable for gross negligence on the part of other non-managerial staff and for slight negligence. In the latter case this is limited to damages typical of such a contract which could reasonably have been foreseen.

All other claims are excluded.

XIV. Period of Limitation

All claims of the customer on whatever legal grounds shall lapse after 12 months. For damage claims pursuant to Section XII, clause 2, a - e and Section XII, clause 3 a - e, the statutorily defined periods shall apply. This also applies for defects of a building or for delivered goods which have been used in a building in accordance with their typical use and caused the building’s defectiveness. If LAMBION performs assembly work on a building and causes it to be defective through this work then the statutory limitations shall apply.

XV. Software Use

If software is contained in the scope of the delivery, the CUSTOMER shall be granted a non-exclusive right to use the supplied software including its documentation. The software is provided for use with the intended delivery item. Use of the software on more than one system is prohibited.

The CUSTOMER may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§69a ff. Urheberrechtsgesetz - German Copyright Law). The CUSTOMER is obligated not to remove or change the manufacturer information included on the software - in particular the copyright notices - without the express prior consent of LAMBION.

All other rights to the software and the documentation including copies thereof remain with LAMBION or the software supplier. The assignment of sublicenses is not permitted.

XVI. Compensation from the Customer

If equipment or tools brought to the assembly location are damaged or lost not due to any fault of LAMBION, then the CUSTOMER is obligated to replace these damages or losses. Damages that are the result of normal wear and tear shall not be covered by this provision.


XVII. Applicable Law, Place of Jurisdiction, Final Provisions


1. The law of the Federal Republic of Germany applicable to the legal relationships between domestic parties shall be the exclusive legal basis for all legal relationships between LAMBION and the CUSTOMER.

2. The place of jurisdiction is the competent court presiding at the location of LAMBION’s headquarters. LAMBION, however, is also entitled to bring legal action at the location of the CUSTOMER’s headquarters.

3. If LAMBION makes use of one of its available rights to withdraw from the contract, then the place of performance for the respective obligations arising from this situation is Bad Arolsen, Germany.

4. If individual provisions of the contract with the CUSTOMER including these Delivery and Assembly Conditions should be or become invalid, the validity of the remaining provisions shall not be affected. The entirely or partially invalid provision shall be replaced by a provision that as nearly as possible accomplishes the business objective intended by the invalid provision.

(State: December 2007)