- Applicability of the Terms and Conditions
- The present General Terms and Conditions of Sale (“Terms”) apply to all business relations between Powermoon GmbH (hereinafter referred to as “Powermoon”) and its customers (hereinafter referred to as “Customer”). These Terms apply only if the Customer is a businessperson (sec. 14 German Civil Code - BGB), a legal entity under public law or special fund under public law.
- These Terms apply in particular for sales and/or deliveries of movable objects (hereinafter referred to as “Goods”), regardless of whether Powermoon manufactures the Goods itself or purchases them from other suppliers (sec. 433, 651 BGB). The Terms apply in the version applicable at the time the order for the Goods is placed by the Customer or, in any case, in the last version made available to the Customer in text form as framework agreement also to future contracts of similar kind without Powermoon having to make express reference to this fact in each individual case.
- These Terms of Powermoon apply exclusively. Deviating, conflicting or supplementary terms of business of the Customer do not become part of the contract unless and until Powermoon expressly agrees to their application. These Terms apply in every case, i.e. even if Powermoon delivers without reservations to the Customer while being aware of the Customer’s terms and conditions of business.
- Individual agreements made with the Customer in the individual case (including collateral agreements, addenda and amendments) always take priority over these Terms. Regarding the contents of such individual agreements a written contract or the written confirmation of Powermoon shall be authoritative.
- Declarations and notifications of legal relevance to be given by the Customer to Powermoon after conclusion of the contract (e.g. setting of deadlines, notices of defects, declaration of withdrawal or reduction of the purchase price) must be in writing to be valid.
- References to the application of statutory provisions have clarifying effects only. Accordingly, the statutory regulations apply even without such clarification, unless they are modified or expressly excluded in these Terms.
- The English version of these Terms is for information purposes only. In case of any inconsistencies between the German and English version of these Terms the German version shall prevail.
- Conclusion of Contract
- Offers from Powermoon are not binding and without obligation. This shall also apply if Powermoon provides to the Customer catalogues, technical documentations (e.g. drawings, plans, calculations, accounts, references to DIN-standards), other product descriptions or records – also in electronic form – regarding which Powermoon reserves all proprietary rights and copyrights. Changes in construction, design and color vis-à-vis the technical documentation and in product descriptions contained in other documents which are based on technical improvement or legal requirements are reserved to the extent such changes are not essential or otherwise unreasonable for the Customer.
- Orders for the Goods made by the Customer are deemed to have binding effect. Unless otherwise stipulated in the order, Powermoon is entitled to accept this offer within 2 weeks from the date of receipt thereof.
- The acceptance may be declared either in writing (e.g. by an order confirmation) or by means of delivery of the Good to the Customer
- Delivery Period and Default
- The delivery period will be agreed upon individually or specified by Powermoon in the acceptance of the order. If this should not be the case the delivery period will be approx. 2 weeks from the date of conclusion of the contract
- If, for reasons other than those for which Powermoon is responsible for, Powermoon is unable to adhere to the agreed delivery dates (unavailability of performance) Powermoon will notify the Customer accordingly without delay while at the same time informing the Customer of the new estimated delivery period. If performance is also not available within the new delivery period then Powermoon is entitled to withdraw from the contract partially or completely; any consideration already received from the customer will be refunded to Customer without delay. Unavailability of performance within this meaning shall be deemed to have occurred in particular in the case of late delivery from reliable suppliers of Powermoon, if Powermoon concluded a congruent covering transaction and Powermoon is not at fault or Powermoon is not obliged to procurement in the individual case.
- Occurrence of default in delivery by Powermoon is determined according to the statutory provisions. In any case the Customer is obliged to issue a reminder. If Powermoon gets into default and the Customer suffers damage therefrom, the Customer may demand liquidated damages for its damage caused by default. The liquidated damages amount to 0.5 % of the net price (delivery value) per completed calendar week, however, overall not more than 5% of the delivery value of the Goods delivered with delay. Powermoon shall be entitled to prove that no or only substantially lower damage than the aforementioned liquidated damages has occurred.
- The rights of the Customer according to clause 8 of these Terms and Powermoon´s statutory rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) remain unaffected.
- Delivery, Passing of Risk
- Delivery is made ex stock which also is the place of performance for the delivery and possible subsequent performance. At the request and expense of the Customer the Goods may be delivered to a place other than the place of performance (“Sale by Dispatch”). Unless otherwise agreed, Powermoon is entitled to determine the type of delivery (transport company, dispatch route, packaging).
- The risk of accidental loss or deterioration of the Goods passes to the Customer at the latest at the time of handing over of the Goods to the Customer. In case of Sale by Dispatch the risk of accidental loss or deterioration of the Goods as well as the risk of delay passes at the time of dispatch of the Goods to the freight forwarder, carrier or to another person or institution appointed to carry out the dispatch. If an acceptance is agreed, it shall be decisive for the passing of risk. Statutory provisions on contracts for work and labor apply accordingly for an agreed acceptance. Handing over or acceptance shall be deemed to have occurred if the Customer gets into default with acceptance.
- If the Customer gets in default with acceptance or if he fails to perform an act of cooperation or if delivery is delayed for other reasons the Customer is responsible for, Powermoon is entitled to demand compensation of damages resulting therefrom including additional expenses (e.g. expenses for storage). In any case Powermoon will charge a lump sum compensation in the amount of the costs of storage customary at the respective place, commencing with the delivery time respectively – in the absence of a delivery time – with the notice of the readiness for dispatch of the Goods. If the Customer cancels the contract without cause Powermoon is entitled to demand 20 % of the gross order value as liquidated damages (damages in lieu of performance). The proof of a higher damage and statutory claims of Powermoon (in particular additional expenses, reasonable compensation, termination) remain unaffected; however, liquidated damages are to be credited against further monetary claims. The Customer is entitled to prove that no or only substantially lower damage than the aforementioned liquidated damages have occurred.
- Price, Terms of Payment
- Unless agreed otherwise the purchase prices of Powermoon effective at the time the contract is concluded shall apply, namely ex stock plus VAT.
- In the case of Sale by Dispatch (Clause 4.1) the Customer shall bear the costs of transport and storage and the costs of an insurance of the transport if an insurance is required by the Customer. The Customer shall bear any customs duties, fees, taxes and other public levies. Powermoon will not take back transport packaging and all other packaging according to packaging regulations, they become property of the Customer; this shall not apply to pallets.
- Unless otherwise agreed, the purchase price is due for payment within 30 calendar days from the invoice date and delivery, respectively acceptance, of the Goods. In case of new Customers and small purchases up to a value of the Goods to be delivered of 500.00 EUR Powermoon is entitled to require advance payment.
- In the event of the aforementioned payment period being exceeded, the Customer is in default. From the due date default interest pursuant to the applicable legal provisions shall accrue. Powermoon reserves all rights to claim further damages for delay. The claim of Powermoon for commercial maturity interest (sec. 353 German Commercial Code - HGB) against merchants remains unaffected
- Customer may offset payment only against uncontested or legally established receivables. The same shall apply to the exercise of rights of retention. In case of defects of the delivered Goods counterclaims of the Customer, in particular those according to clause 7.6, second sentence, of these Terms remain unaffected.
- Insofar as circumstances arise after conclusion of the contract which appear to put the creditworthiness of the Customer in doubt (e.g. filing for initiation of insolvency proceedings), Powermoon is entitled according to the statutory provisions to refuse performance and – as the case may be after setting a deadline – to withdraw from the contract (sec. 321 BGB). In case of contracts for the production of custom-made products, Powermoon may withdraw from the contract immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.
- Reservation of Title
- Powermoon retains title in the Goods delivered (reserved-title Goods) until the payment of all current and future accounts receivable arising from the purchase contract and a current business relation with the Customer.
- The Customer has no rights to pledge or assign the Goods as security. The Customer shall inform Powermoon without delay in writing if a petition in bankruptcy has been filed and insofar as third parties seize the Goods (e.g. by garnishment) which belong to Powermoon.
- In case of breaches of contractual duties by the Customer, in particular the non-payment of the due purchase price, Powermoon is entitled, according to statutory provisions, to withdraw from the contract and/or demand restitution of the Goods by reason of the retention of title. The claim for restitution does not include the declaration to withdraw from the contract; Powermoon is in fact entitled to only demand restitution and reserve its rights to withdraw from the contract. If the Customer does not pay the purchase price, Powermoon may only claim these rights if it has set a reasonable deadline for payment before or if setting a deadline is dispensable under applicable legal provisions.
- Until a withdrawal according to clause 6.4 (c) below the Customer is entitled to resell the reserved-title Goods only in the normal course of business and/or to process them. In this case, the following additional provisions apply.
(a) The reservation of title extends to the goods which are manufactured by processing, mixing, combining the Goods from Powermoon, whereas Powermoon is deemed to be the manufacturer of the goods. In case the Goods are processed, mixed or combined with goods of third parties and their title persists, Powermoon shall become the co-owner of the goods pro rata based on the invoice value of the processed, mixed or combined Goods. Incidentally, for the manufactured Goods the provisions for delivered reserved-titled Goods are applicable.
(b) The Customer already now assigns to Powermoon all its receivables arising from the resale of the Goods or the manufactured good in a whole or in the amount of a possible co-ownership share as security. Powermoon accepts the assignment. The obligations of the customer stipulated in clause 6.2 apply accordingly with regards to the assigned receivables.
(c) The Customer remains authorized to collect the receivables in addition to Powermoon. Powermoon shall not collect the receivables as long as the Customer is not in default with its payments, no petition in bankruptcy is filed, no other circumstances become known that are capable of considerably diminishing the credit-worthiness and Powermoon does not invoke its retention of title by asserting its rights according to clause 6.3. In any of the aforementioned cases Powermoon can demand that the Customer notifies Powermoon of the assigned claims and the debtors, to provide Powermoon with all information necessary for the collection, to hand-over all corresponding documents and to inform all debtors (third parties) of the assignment. Furthermore, in this case Powermoon is entitled to revoke the Customer´s authorization to sell or process the Goods.
(d) If the realizable value of the securities exceeds the receivables of Powermoon by more than 10 %, Powermoon will at the request of the Customer release securities at its choice.
- Defects
- The rights of the Customer in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) shall be governed by the statutory provisions, unless otherwise stipulated below. In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse according to secs. 478, 479 BGB).
- Basis for the liability for defects of Powermoon is above all the agreement on the properties of the Goods. The product descriptions designated as such, which were provided to the Customer prior to his order or which were included in the contract in the same way as these Terms, shall be deemed to be the agreement on the quality of the goods. Declarations by Powermoon regarding the quality of the goods only represent a guarantee in case of doubt if Powermoon has expressly designated them as such.
- Insofar as the parties did not agree on the properties, the existence of a defect is determined by the statutory provisions (sec. 434 (1) 2 and 3 BGB). Powermoon shall not be held liable for public statements made by the manufacturer or other third parties (e.g. advertising statements). The Customer cannot derive any further rights from material defects that do not affect the value or suitability of the Goods for the purpose recognizable for Powermoon or which do so merely to a negligible extent.
- The Customer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (under secs. 377, 381 HGB). If a defect is revealed during the inspection or later, Powermoon must be notified of this in writing without delay. The notification shall be deemed to be without delay if it is made within one week, whereby the timely dispatch of the notification shall be sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer must give written notice of obvious defects (including wrong and short delivery) within two weeks of delivery, whereby timely dispatch of the notice is also sufficient to meet the deadline. If the Customer fails to carry out the proper examination and/or notification of defects, Powermoon's liability for the defect not notified is excluded.
- If the delivered Good is defective, Powermoon may initially choose whether Powermoon will provide subsequent performance by eliminating the defect (rectification) or by delivering an item free of defects (replacement). The right of Powermoon to refuse subsequent performance under the statutory conditions remains unaffected.
- Powermoon is entitled to make the subsequent performance owed conditional upon the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in proportion to the defect.
- The Customer must give Powermoon the opportunity and time necessary for the subsequent performance, in particular to hand over the rejected Good for the purpose of examination. In case of replacement delivery the Customer must return the defective Good according to the statutory provisions. Subsequent performance does not include the removal of the defective Good or the new installation, if Powermoon was initially not obliged to install the Goods.
- Powermoon shall bear the necessary costs of examination and subsequent performance, in particular transport, labor and material costs (not the cost of installation and removal) in case of existing defects. If the demand for elimination of defects of the Customer turns out to be unjustified, Powermoon is entitled to claim the reimbursement of the costs incurred therefrom.
- In urgent cases, e.g. threat to the operational safety or for the defense of disproportional damages, the Customer has the right to eliminate the defect itself and demand compensation of the objectively necessary costs incurred therefrom from Powermoon. If the Customer eliminates the defect itself it shall inform Powermoon without delay and if possible in advance. The Customer does not have the right to eliminate the defect itself if Powermoon is entitled to refusal of a subsequent performance according to statutory provisions.
- If subsequent performance is unsuccessful, does not take place within a reasonable deadline set by the Customer or if setting a deadline is dispensable according to statutory provisions the Customer may, at its own discretion, withdraw from the contract or require a reduction in the purchase price. The Customer has no right to withdraw from the contract in case of an insignificant defect.
- In the event and to the extent that defects are caused by the Customer’s failure to comply with the operating and maintenance instructions of Powermoon, the use of replacement parts or materials that do not conform to the original specifications or interference by unqualified personnel Powermoon has no liability insofar as a defect is caused thereby. If a defect is present and if one of the aforementioned situations occurred, the Customer must prove that the defect was not caused by one of the above situations.
- Claims for damages of the Customer or reimbursement of frustrated expenses are limited to the provisions in sec. 8. Further claims are excluded.
- Liability
- Unless otherwise agreed in these Terms, including the following provisions, the liability of Powermoon for a breach of contractual and non-contractual duties is determined by the pertinent statutory provisions.
- Regardless of the basis in law, Powermoon is within the scope of fault-based liability liable for damages only in the case of intent and gross negligence. Powermoon is liable in the event of simple negligence, subject to the applicability of a lower of standard of liability pursuant to statutory provisions (e.g. standard care in one´s own affairs), only
a) for damages arising from death or personal injury,
b) for damages arising from the breach of a fundamental contractual duty; in this event, however, the liability of Powermoon to compensate for damages is limited to the foreseeable damages that would typically have occurred. Deemed to be a fundamental contractual duty for this purpose is an obligation without which proper performance of the contract would be impossible and on the performance of which the other party relies and is entitled to rely.
- All other claims of the Customer based on contract or tort are excluded. Powermoon is therefore in particular not liable for damage that has not occurred to the delivered Goods themselves, nor for lost profits or other financial losses of the Customer.
- The limitations of liability arising from the above clauses 8.2 and 8.3 do not apply if Powermoon has fraudulently concealed defects or has given a guarantee for the condition and quality of the Goods. The same applies to claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz).
- Due to a breach of duty which does not consist of a defect, the Customer can only withdraw or terminate the contract if Powermoon is responsible for the breach of duty. A free right of termination by the purchaser (in particular in accordance with secs. 651, 649 BGB) is excluded. In all other respects the statutory requirements and legal consequences shall apply.
- To the extent to which the liability of Powermoon is excluded or limited according to the aforementioned provisions, this also applies to the personal liability of its employees, workers, staff, representatives and vicarious agents.
- Statute of Limitations
- Claims from defects shall be time-barred after 12 month of passing of risk. Insofar as an acceptance has been agreed the limitation period shall commence with the acceptance.
- If the Good is a building or a product customarily used for a building and has caused a defect in the latter, claims shall be time-barred after 5 years of the passing of risk according to the statutory provisions (sec. 438 subsec. 1 No. 2 BGB). Further special statutory provisions regarding the statute of limitations (in particular sec. 438 subsec. 1 No. 1 and subsec. 3 BGB,secs. 444, 479 BGB) remain unaffected.
- The aforementioned limitation periods also apply for contractual and non-contractual claims for damages of the Customer, unless the applicability of regular statutory period of limitation (sec. 195, 199 BGB) would, in the individual case, lead to a shorter limitation period. Claims for damages of the Customer according to clause 8.2 para. 1 and 2 a) as well as according to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
- Intellectual Property
- The Customer shall examine the possibility of infringements of intellectual property rights resulting from specifications provided by the Customer together with a placed order and inform Powermoon that the ordered items are protected by intellectual property rights. The Customer shall assume full liability for claims made by third parties due to the use of specifications provided by the Customer.
- The Customer shall inform Powermoon at the earliest time possible in writing if a third party alleges the infringement of intellectual property rights or other rights with regards to the delivered Goods or claims the infringement judicially or extra-judicially. The Customer shall give Powermoon the possibility to give its opinion before admitting the claim. Upon request, Powermoon is to be granted the authority to conduct the negotiation or legal dispute with the third party at its own expense and responsibility.
- If at the time of passing of the risk an infringement of intellectual property rights is given for which Powermoon is responsible and liable, Powermoon shall warrant supplementary performance by way of
- altering the Goods concerned in a manner that intellectual property rights of third parties are not infringed anymore and the function respectively the fitness of the Good is not unreasonably impaired;
- replacing the infringing Goods by products which do not infringe intellectual property rights if they are used as agreed in the contract and if it is acceptable for the Customer and its clients;
- licensing the appropriate or sufficient rights for the purpose of the contract.
- The Customer shall indemnify Powermoon for the damage resulting from a culpable breach of its obligations in clause 10.2. Claims of the Customer according to clause 10.3 are excluded in this case.
- Confidentiality
All business and trade secrets and all confidential information of Powermoon shall be kept strictly confidential and must not be made available to third parties without Powermoon´s express authorization unless the Customer furnishes proof that it may use the confidential information legitimately. - Choice of Law and Jurisdiction
- The law of the Federal Republic of Germany shall govern these Terms and the contractual relations between Powermoon and the Customer to the exclusion of all international (contractual) law systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Prerequisites and effects of the reservation of title according to clause 6 are subject to the law of the respective location of the Good, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
- If the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a public-law special fund then the exclusive – also international – place of jurisdiction for all disputes arising from or in connection with the present Contract is the registered office of Powermoon. The same applies mutatis mutandis if the Customer is a business person in the meaning of sec. 14 BGB. Powermoon is entitled to file a lawsuit at the place of performance of the delivery obligation according to these Terms or a prevailing individual agreement, respectively, or at the general place of jurisdiction of the Customer. Prevailing statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.