GENERAL TERMS AND CONDITIONS

1.    These Terms and Conditions (GTC) shall apply to all current and future business relationships between COLEXON Energy AG (hereinafter COLEXON) and natural persons or legal entities or limited companies, with whom a business relationship is entered into, and which perform a commercial or self-employed professional activity (hereinafter Customers). They shall apply to all future business relationships, even if they are not explicitly agreed again. These Terms and Conditions are considered to be accepted at the latest upon receipt of the goods or the performance of services.
2.    We herewith oppose any confirmations to the contrary by the Customer referring to its terms and conditions. Any deviating, contradictory or supplementary General Terms and Conditions of the Customer shall not become an integral part of the contract, even if the parties hereto are aware of them, unless expressly agreed in writing.
3.    The Customer shall only be entitled to offset payments, if its counterclaims have either been upheld pursuant to a final and absolute court decision, or if they have been accepted by COLEXON in writing.
4.    The Customer shall only be entitled to assert a right to withhold payments if its counterclaims are based on the same contractual relationship. The Customer may only assign existing contractual claims against COLEXON to third parties with the express written consent of COLEXON.
5.    In addition, all business relationships shall also be subject to the law of the Federal Republic of German, in particular the relevant provisions of the BGB (German Civil Code).

1.    Offers of COLEXON shall be subject to confirmation and without obligation.
2.    By ordering the goods, the Customer shall bindingly state its intention to place the order. COLEXON shall be entitled to accept the contractual offer quoted in the order within a period of four weeks following its receipt.
3.    With regard to the scope of the contractually-owed services, the confirmation of order from COLEXON shall be exclusively authoritative. Any and all drawings, illustrations, measures, weights and characteristics or other performance data shall only be binding if they are explicitly agreed in writing. In particular, public statements, endorsements or advertising shall not be deemed to constitute a contractually-specific description of the quality of the goods. In the case of solar modules, the agreed quality for each individual module shall be described in the respective manufacturer’s data sheet. In this regard, exclusively the manufacturer’s flash protocol shall be authoritative in determining compliance with the permissible range of electronic tolerance stated therein for the respective module. Deviations within the tolerance ranges specified by COLEXON shall be regarded as insignificant, and shall not substantiate claims for defects.
4.    The Customer shall agree to modification proposals of COLEXON even after confirmation of order, provided that such modifications are reasonable.
5.    The agreed prices shall be “ex warehouse”. They shall not include packaging, freight, postage, insurance and other shipping costs or statutory VAT.
6.    Insofar as no separate prices have been agreed between COLEXON and the Customer for individual additional orders, customary local and reasonable prices valid on the date of delivery shall apply.
7.    Remuneration shall be due upon delivery or acceptance at the latest. If and to the extent that it has not paid, the Customer shall be deemed to be in default, without any further notice on the part of COLEXON, four weeks after the due date. In the event of defects, the Customer shall not be entitled to right of retention, unless the consignment is obviously defective or the Customer has a manifest right to reject the consignment.  In such a case, the Customer shall only be entitled to withhold payment insofar as the sum withheld reasonably reflect the defects established and anticipated costs for subsequent performance – especially for elimination of the defects. The Customer shall not be entitled to assert claims and rights on grounds of defects unless it has made all due payments and the amount due (including any payments made) is in reasonable proportion to the value of the – defective – consignment or work.
8.    In the case of agreements with an agreed term of four months or more, COLEXON reserves the right to increase the prices by as much as 10% of the agreed price commensurate with price increases owing to the rising cost of materials.
9.    If instalment payments have been agreed, the entire outstanding debt shall fall due for immediate payment if the Customer defaults on the payment of two consecutive instalments or partially falls into arrears, and the amount by which the Customer is in default is at least one tenth of the agreed total price.
10.    In the event of material changes to the order following conclusion of the agreement, a new price is to be agreed taking into consideration the respective circumstances of the individual case. Insofar as the Customer requests that COLEXON performs services going beyond the scope of the agreement, COLEXON shall be entitled to demand a separate fee based on customary local and reasonable remuneration.
11.     The place of performance for all payments by the Customer shall be the company headquarters of COLEXON. Unless agreed to the contrary, the critical point in time for determining timely payment shall in each case be the date on which the payment is credited to the business account of COLEXON.

1.    Unless expressly agreed to the contrary in writing, dates and periods of delivery shall be regarded as non-binding. Partial deliveries and partial provisions of services shall be permissible insofar as this is reasonable for the Customer. If binding delivery periods have been agreed, these shall commence upon conclusion of the agreement. In the event that contractual amendments are subsequently agreed in writing, a new delivery date and period must be agreed at the same time, if necessary.
2.    If a binding delivery date was agreed, the Customer shall, in the event of default on the part of COLEXON, set a reasonable period of grace of at least four weeks.
3.    COLEXON’s delivery obligations shall be subject to timely and correct receipt of the goods from its own suppliers. COLEXON shall not assume any responsibility for delays in delivery and performance due to force majeure or circumstances that not only temporarily substantially impede COLEXON’s delivery or make delivery impossible (e.g. strikes, lockouts, etc.), and including such events affecting its suppliers or sub-suppliers, even in the event that periods and dates have been bindingly agreed. Such events, including force majeure, shall entitle COLEXON to postpone the delivery or service for the duration of the hindrance, plus an appropriate start-up period, or to withdraw from the contract either in full or in part due to the part that has not been fulfilled. Otherwise, liability shall be limited pursuant to the provisions of Section E.
4.    The risk of accidental destruction and accidental deterioration of the goods shall be transferred to the Customer upon delivery, and in cases of shipment purchases, upon delivery of the item to the freight forwarder, carrier, or any other person or institution instructed to make such delivery.
5.    Delivery shall have occurred even if the buyer is in default with respect to acceptance.
6.    If the client defaults on payment or negligently or intentionally breaches other contractual commitments, COLEXON is, irrespective of all other rights, entitled to set a reasonable deadline fort he client and if he does not pay until the end of the deadline to withdraw from the contract and to claim compensation from him. In case COLEXON is entitled to claiming either without any evidence of damages 15 % of the contractual price or the compensation for the actual damages incurred. In case of claiming of the previously mentioned lump-sum amount, it is left to the client to prove to COLEXON that there are no damages or reduction in value or it is significantly lower than the claimed lump-sum amount.

1.    1. The Customer must inspect the goods immediately following receipt and, in the event of defects, notify COLEXON hereof immediately in writing. No entitlement to assert warranty claims shall exist for obvious defects of which COLEXON was not notified in writing at the latest within a period of five days following receipt.
2.    COLEXON shall not accept any responsibility for material defects to goods supplied by a third party, which are passed on to the Customer unchanged; this shall not affect its responsibility in the event of intent or negligence.
3.    Warranty claims shall not exist in the event of minor deviations from the agreed quality or in the case of minor impairments of usability.
4.    COLEXON shall, at its discretion, initially provide subsequent improvement or a replacement delivery for defects of the goods. If the Customer wishes to claim damages in lieu of performance, or wishes to undertake performance (repairs) itself, subsequent performance shall only be deemed to have failed following the second unsuccessful attempt. The statutory regulations concerning the dispensability of the fixing of a time-limit shall remain unaffected. Any expenses required for the purpose of the subsequent performance shall be for the Customer’s account if they increase because the delivery or service is performed at a location other that Customer’s place of business, unless the shipment to this location corresponds to their prescribed use.
5.    Should subsequent performance fail, the Customer may on principle opt either to reduce payment (reduction) or to withdraw from the contract (rescission).
6.    If the Customer opts to withdraw from the Agreement due to a defect of title or a material defect following a failed attempt at subsequent performance, it shall not have any recourse to claim damages owing to the defect.
7.    If, after unsuccessful subsequent performance, the Customer opts for damages, the goods shall remain with the Customer if this is reasonable. The damages shall be limited to the difference between the purchase price and the value of the defective goods.
8.    In the case of processed goods, the warranty period shall be two years, commencing on the date of delivery.
9.    All warranty claims shall become null and void with immediate effect if the goods are interfered with by persons not authorised by COLEXON.
10.    Warranty claims are not assignable and may only be asserted by the original buyer.
11.    The above limitations of liability shall not apply in the event of intent or gross negligence on the part of COLEXON, one of its legal representative or vicarious agents. For the rest, liability shall be limited pursuant to the provisions of Section E.

1.    In cases of intent or gross negligence (even on the part of one of its representatives or vicarious agents) COLEXON shall be liable as is legally provided-for. In all other cases, COLEXON shall only be liable pursuant to German Product Liability Law, for loss of life, physical injury or damage to health or due to the culpable breach of material contractual obligations. The claim for damages owing to the breach of material contractual obligations shall, however, be limited to the foreseeable damage that are typical for this type of agreement. Even in cases of gross negligence, the liability of COLEXON shall be limited to the foreseeable damage that are typical for this type of agreement, provided that none of the exceptions cited in Clause 2 of this Paragraph 1 above exist.
2.    However, liability for damage caused by the goods to the Customer’s legally protected rights, e.g. damage to other objects, is completely excluded. This shall not apply in cases of intent or gross negligence or due to liability for loss of life, physical injury or damage to health.
3.    The provisions of Paragraphs 1 and 2 above extend to both damages in addition to performance, as well as damages in lieu of performance, on whatever grounds, in particular owing to defects, breaches of obligation or tortuous acts. The aforementioned provisions shall also apply for the claim for compensation of gratuitous expenses. Liabilities for default and impossibility shall be governed by item 4.
4.    In the event of delays in performance or impossibility in cases of intent or gross negligence on the part of COLEXON or one of its representatives or vicarious agents, COLEXON shall be liable as provided-for by law. Even in cases of gross negligence, the liability of COLEXON shall, however, be limited to the foreseeable damage that are typical for this type of agreement, provided that none of the exceptions cited in Clause 5 of this Paragraph above exist. In all other cases, COLEXON’s liability shall in the event of impossibility of performance be limited to damages and reimbursement of gratuitous expenses to the maximum amount of 5 % of the value of the performance and in the event of delays in performance to damages in addition to performance in the amount of 5 %, respectively to damages in lieu of performance to the amount of 5 % of the value of the performance. Further claims on the part of the Customer owing to impossibility of or delays in performance shall be excluded – even following the expiry of a period within which COLEXON is to perform. This limitation shall not apply in cases of intent or gross negligence or due to liability for loss of life, physical injury or damage to health. This shall not affect the Customer’s statutory right of withdrawal.
5.    This provision does not entail an alteration of the burden of proof to the Customer’s detriment.

1.    The goods shall remain the property of COLEXON until all claims of COLEXON against the Customer arising from the business relationship have been honoured.
2.    For as long as the retention of title is enforceable, the Customer is prohibited from pledging or assigning the goods as security. The goods may only be resold by sellers in the ordinary course of business and only on the condition that the Customer receives payment of the equivalent value of the supplied goods. Moreover, the Customer must agree with the buyer that title shall only pass to the buyer once the latter has fulfilled its payment obligations.
3.    The Customer is permitted to process the goods or intermix or combine them with other objects. The processing, intermixing or combination (hereinafter jointly referred to as “processing” and with regards to the supplied goods “processed”) shall take place on behalf of COLEXON; the resulting object shall be referred to as the “processed goods”. The Customer shall hold the processed goods for COLEXON with the diligence of a prudent businessman. In the event of processing with other objects that do not belong to the COLEXON, COLEXON shall be entitled to pro-rata co-ownership of the processed goods in the ratio of the value of the processed supplied goods to the value of the remaining goods at the time of processing. If the Customer acquires sole ownership of the processed goods, COLEXON and the Customer shall agree that the Customer shall grant COLEXON pro-rata co-ownership of the processed goods in the ratio of the value of the processed supplied goods to the other processed goods at the time of processing.
4.    In the event of the sale of the supplied goods or processed goods, and in order to satisfy collateral requirements, the Customer shall assign all claims vis-à-vis the buyer arising from the resale, including all subsidiary rights, to COLEXON, without further specific declarations to this effect being required. The assignment shall extend to any and all balance claims. The assignment shall however only apply to the amount corresponding to the price of the supplied goods invoiced by COLEXON. The share of the claim assigned to COLEXON shall take priority over remainder of the claim.
5.    If the Customer combines the supplied goods or processed goods with real estate or moveable property, the Customer shall also assign this claim, which is due to it as payment for the combination, including all subsidiary rights, to COLEXON, in order to satisfy collateral requirements, in the ratio of the value of the supplied goods or the processed goods to the other combined goods at the time of combination.
6.    The Customer shall be entitled to collect the claims assigned pursuant to this Section E retention of title, until such authorisation is revoked. The Customer shall forward all payments made in respect of the claim assigned to COLEXON without delay up to the amount of the collateralised claim. Given just and legitimate cause, in particularly in the event of default of payment, cessation of payment, institution of bankruptcy proceedings, bill protest or justified evidence of excessive indebtedness or impending inability to pay on the part of the Customer, COLEXON shall be entitled to revoke the Customer’s authorisation to collect. Moreover, COLEXON shall be entitled, after prior announcement and under observation of a reasonable notice period, to disclose the assignment of title, to exploit the assigned claims, and to request disclosure of the assignment of title by the Customer to the buyer.
7.    If the COLEXON is able to prove its legitimate interest, the Customer shall provide COLEXON with any information required by COLEXON to assert its rights against the buyer, and to supply the required records.
8.    The Customer shall undertake to immediately inform COLEXON of any pledges, confiscations or other disposals or interventions by third parties.
9.    If the value of the security goods exceeds COLEXON's claims by more than 10 %, COLEXON shall release the goods to this extent at the request of the Customer; COLEXON shall have the right to decide which security titles are to be released.
10.    Should the Customer fail to fulfil its contractual obligations, in particular if it is in default of payment, COLEXON shall be entitled to demand the return of the supplied goods or the processed goods without giving prior notice and/or to withdraw from the agreement; the Customer shall be obliged to surrender such goods. The request to surrender the supplied and/or processed goods shall not constitute a declaration of withdrawal on the part of COLEXON unless such withdrawal is explicitly stated.

Should individual provisions of the agreement entered into with the Customer, including these General Terms and Conditions be or become invalid either in whole or in part, this shall not affect the validity of the remaining provisions. Instead, the wholly or partially invalid provision shall be replaced by a valid provision coming as close as possible to the economic purpose of the invalid provision.

If the Customer is a merchant, a legal entity or a public special fund, the place of jurisdiction for all disputes arising from the business relationships shall be the company headquarters of COLEXON. The same shall apply if the Customer is not domiciled in Germany or if its place of residence or whereabouts is unknown at the point in time at which the action is filed.


Hamburg, May 1, 2008