As of October 01, 2024
TESVOLT OCEAN GmbH ("OCEAN") develops and manufactures high-quality energy storage solutions based on lithium-ions ("TESVOLT OCEAN storage system"). The TESVOLT OCEAN storage systems typically consist of the housing, the battery modules consisting of several battery cells, the wiring and fuses, the Power Distribution Unit (PDU) and the Battery Area Management Unit (BAMU) as well as the operating software installed on the TESVOLT OCEAN storage system. In addition, the TESVOLT OCEAN scope of delivery may include other components such as loggers and inverters. The following General Terms and Conditions apply to the purchase, delivery, installation and commissioning of TESVOLT OCEAN storage systems and components of TESVOLT OCEAN storage systems.
1. When do these General Conditions apply?
1.1. These General Terms and Conditions (“GTC”) apply to contracts between TESVOLT OCEAN (“OCEAN”) and its customers which relate to the purchase and, where applicable, delivery, installation and commissioning of energy storage systems. They also apply to other components, such as inverters or converters, and to individual components of TESVOLT OCEAN storage systems offered for sale by TESVOLT OCEAN. In the following, the term "TESVOLT OCEAN storage system" refers to complete energy storage units as well as to individual components and accessories of TESVOLT OCEAN storage systems. Offers from TESVOLT OCEAN based on these conditions are directed exclusively at entrepreneurs and commercial resellers, but not at consumers.
1.2. The contractual partner of the customer will be:
TESVOLT OCEAN GmbH
Maria Göppert Straße 3
D-23562 Lübeck
Germany
Registered at Lübeck Local Court
Commercial Register No.: HRB 23560
1.3. These GTC shall only be superseded by individual written agreements between the customer and OCEAN. Deviating general terms and conditions of the customer shall only apply if expressly confirmed in writing by OCEAN.
2. How is the contract between the customer and TESVOLT OCEAN concluded?
2.1. To order a TESVOLT OCEAN storage system, TESVOLT OCEAN provides the customer with a non-binding offer. All offers by TESVOLT OCEAN- whether in writing, by e-mail, on the Internet, in brochures, advertisements, other advertising materials or in consultation meetings
- serve solely to inform the customer and do not constitute a legally binding offer by TESVOLT OCEAN to conclude a contract.
2.2. By sending or handing over the order documents to OCEAN, the customer submits a binding offer to conclude a contract for the delivery and, if applicable, the installation and/or commissioning of the TESVOLT OCEAN storage system.
2.3. TESVOLT OCEAN confirms the acceptance of this offer to the customer within four weeks with a order confirmation. The contract is concluded when the customer receives the order confirmation. A confirmation of receipt of the binding offer does not constitute acceptance. It only informs about the receipt of the order documents.
2.4. Insofar as TESVOLT OCEAN or the web pages of TESVOLT OCEAN offer or produce drawings, diagrams, technical calculations (e.g. for the design of TESVOLT OCEAN energy storage systems), financial calculations and/or forecasts, yield calculations and/or calculations for the economic efficiency of TESVOLT OCEAN storage systems, these are merely non-binding examples. TESVOLT OCEAN assumes no liability for their correctness unless they are designated as binding by TESVOLT OCEAN in individual cases. Furthermore, they do not constitute a basis for the conclusion of the contract.
3. What are the main obligations of TESVOLT OCEAN?
3.1. TESVOLT OCEAN undertakes to supply the customer with the TESVOLT OCEAN storage system specified in the order confirmation. Unless otherwise agreed in writing in individual cases, TESVOLT OCEAN shall owe neither the installation nor the commissioning of the TESVOLT OCEAN storage system.
3.2. TESVOLT OCEAN reserves the right to make technical changes to TESVOLT OCEAN storage systems as well as changes in shape, colour and/or weight, insofar as they are insignificant for the intended use of the TESVOLT OCEAN storage system or are beneficial to the customer, correspond to the state of the art and do not incur any additional costs for the customer.
3.3. TESVOLT OCEAN shall be entitled to have the contractual services performed in whole or in part by third parties.
4. When will the TESVOLT OCEAN storage system be delivered and installed?
4.1. The delivery date and, if applicable, the installation date of the TESVOLT OCEAN storage system are stated in the order confirmation. If delivery of the TESVOLT OCEAN storage system ex works (EXW), free carrier (FCA) or carriage paid to (CPT) has been agreed in accordance with the rules of the International Chamber of Commerce (ICC) for the interpretation of national and international trade clauses (INCOTERMS) applicable at the time the contract is concluded, the delivery periods and delivery dates shall refer to the time the TESVOLT OCEAN storage system is made available at OCEAN’s works.
4.2. The installation of the TESVOLT OCEAN storage system requires the timely and proper fulfillment of the customer's obligations according to Sections 8 (payment obligations) and 9 (cooperation obligations) as well as the clarification of all technical questions and the fulfillment of all existing cooperation obligations.
4.3. If a delivery date agreed in writing is exceeded, the customer shall initially grant TESVOLT OCEAN a reasonable grace period of at least two weeks. Information on delivery date is based on the current planning status and is non-binding unless otherwise assured in writing.
4.4. The delivery date is subject to correct and punctual delivery to TESVOLT OCEAN by sub-suppliers.
5. What applies with regard to the operating software and its updates?
5.1. Insofar as this is necessary or deemed reasonable by OCEAN, TESVOLT OCEAN may update the operating software installed on the TESVOLT OCEAN storage system from time to time and provide the respective update.
5.2. The provision of updates shall be limited to the duration of any warranty period, but at least 3 years after the transfer of risk in accordance with Section 13.
5.3. The type of provision shall be made at the reasonable discretion of TESVOLT OCEAN for downloading via the Internet or in another suitable manner. TESVOLT OCEAN may notify the customer of a corresponding update by e-mail to the e-mail address provided by the customer or another e-mail address of the customer known to TESVOLT OCEAN or in a portal designated by TESVOLT OCEAN.
5.4. In the event that the customer opts for any automatic download and installation function of updates offered by OCEAN, the Customer shall ensure a functioning Internet access in order to enable the smooth updating and commissioning of the updates.
5.5. It is the customer's responsibility to ensure that the update is installed on the TESVOLT OCEAN storage system. If an update is not installed, full functionality of the TESVOLT OCEAN storage system may not be guaranteed. The customer cannot derive any rights from a malfunction of the TESVOLT OCEAN storage system which is based on outdated operating software.
5.6. If the customer uses the TESVOLT OCEAN storage system together with other components or systems, it is his responsibility to check the compatibility of updates of the TESVOLT OCEAN storage system with such components or systems in advance.
6. What applies in the event of default in acceptance by the customer?
6.1. If the customer is in default of acceptance, cancels agreed dates at short notice (less than two weeks before the respective date), makes false statements in the ordering and coordination process or culpably infringes other duties to cooperate, TESVOLT OCEAN shall be entitled to suspend the services owed until the end of the default or the performance of the required cooperative action and to demand compensation for the damage incurred, including any additional expenses. Further claims or rights remain reserved.
6.2. The costs for the storage of the TESVOLT OCEAN storage system shall be borne by the customer during the default of acceptance. The costs are calculated at a flat rate of 0.50 Euro (net) per day per m² of the required storage area.
6.3. In the event of default of acceptance by the customer, TESVOLT OCEAN may withdraw from the purchase contract after expiry of a reasonable period for acceptance of the TESVOLT OCEAN storage system. In this case, TESVOLT OCEAN can demand a lump sum compensation from the customer in the amount of 10 % of the net purchase price. Deviating from this, TESVOLT OCEAN can demand a lump sum compensation in the amount of 30% of the net purchase price if the TESVOLT OCEAN storage system has been manufactured customer-specifically for the individual case. The damages shall be set higher or lower if TESVOLT OCEAN proves higher damages or the customer proves lower damages.
7. Where is the place of fulfilment and what duties must the customer observe when receiving and storing the TESVOLT OCEAN storage system?
7.1. The place of fulfilment for all obligations arising from the contractual relationship shall be the place of delivery stated in the offer and the order confirmation. If no express place of delivery is named, the delivery and mode of transport of the TESVOLT OCEAN storage system ex works (EXW; Maria Göppert Straße 3, 23562 Lübeck, Germany) is agreed in accordance with the INCOTERMS valid at the time of conclusion of the contract.
7.2. In the case of delivery EXW or FCA according to the INCOTERMS valid at the time of the conclusion of the contract, the delivery of the TESVOLT OCEAN storage system to the customer or the commissioned transport company is subject to compliance with all necessary requirements for the performance of dangerous goods transports, in particular the provisions of the European Agree- ment concerning the International Carriage of Dangerous Goods by Road (ADR). In this respect, the customer shall ensure that the freight carrier commissioned by him to collect the goods fulfils all applicable obligations for collection in accordance with the requirements of the ADR. The freight carrier must provide TESVOLT OCEAN with the necessary documentation and all necessary protective measures when collecting the goods. TESVOLT OCEAN is obliged to check every collection for compliance with the requirements of the ADR. If the specifications are not fulfilled, TESVOLT OCEAN will not agree to the handover of the TESVOLT OCEAN storage system.
7.3. Unless otherwise agreed in the order confirmation, the customer must procure the import permit or other official permits at his own risk and expense and complete all customs formalities for importing the goods.
7.4. Partial deliveries and partial performances by TESVOLT OCEAN are permissible, as far as these are not unreasonable for the customer.
7.5. The goods must be subjected to an external visual inspection by the Customer immediately upon receipt. Visible damage to the packaging must be noted on the consignment note when acknowledging receipt of the TESVOLT OCEAN storage system.
7.6. Defects which are obvious or which become apparent upon proper inspection must be reported to TESVOLT OCEAN in text form at the latest five calendar days after handover of the TESVOLT OCEAN storage system to the customer.
7.7. TESVOLT OCEAN shall be notified of non-obvious defects in writing within a period of five days after their discovery. The Customer must comply with the TESVOLT OCEAN "Handling and Warehousing" guidelines The customer is obliged to store the TESVOLT OCEAN storage system properly as soon as it is handed over and to protect it against any damage, such as deep discharge or freezing, as well as against destruction, loss and against unauthorised access by third parties.
7.8. When the TESVOLT OCEAN storage system is handed over to the customer, TESVOLT OCEAN will provide the customer with a draft of the commissioning protocol in electronic form (e.g. USB stick). The customer is obliged to ensure that the commissioning protocol is completed, signed and sent to TESVOLT OCEAN by letter mail or e-mail immediately after commissioning.
8. How and when is billing done? In which cases can the customer offset claims?
8.1. The purchase price owed is a lump sum. The price applies ex works (EXW) according to INCOTERMS, exclusive of pack- aging and transport, unless otherwise agreed between the parties. The prices for packaging and transport will be invoiced sepa- rately. In addition to the purchase price, the value added tax applicable at the time of handover is to be paid unless it is to be borne directly by the customer to the responsible tax authority due to the circumstances of the individual case (e.g. reverse charge procedure).
8.2. All invoice amounts are due for payment without deduction at the latest 14 calendar days after receipt of the invoice by the customer, unless otherwise stated in the payment terms in the offer from TESVOLT OCEAN. A discount deduction is not permitted unless this has been expressly agreed with the customer.
8.3. If the customer is in delay with payment of an invoice amount, interest on arrears shall be payable at the statutory rate.
8.4. If, in case of arrears with payment, a new request for payment or the collection of the amount by a representative becomes necessary, TESVOLT OCEAN shall invoice the customer for the costs incurred thereby. The basis of calculation shall be proven at the customer's request. In the case of a flat-rate calculation, this must be comprehensible to the customer and must not exceed the damage to be expected in the normal course of events. The customer is also permitted to prove that such costs have not been incurred or are significantly lower than the lump sum.
8.5. After delivery as well as installation and acceptance of the TESVOLT OCEAN storage system the customer receives a final invoice.
8.6. The customer may only offset claims of TESVOLT OCEAN against undisputed or legally established counterclaims. This does not apply to claims of the customer against TESVOLT OCEAN due to complete or partial non-fulfilment or defective fulfilment of a delivery or installation obligation.
8.7. The customer is entitled to assign or transfer claims from this contract only after prior written consent by TESVOLT OCEAN.
9. Which rules apply if TESVOLT OCEAN installs and commissions the TESVOLT OCEAN storage system?
9.1. Insofar as TESVOLT OCEAN has undertaken in individual cases to install and/or commission the TESVOLT OCEAN storage system in addition to the delivery of the TESVOLT OCEAN storage system and/or to install updates on the TESVOLT OCEAN storage system, the following provisions of Sections 8.2 to 9.9 apply.
9.2. The TESVOLT OCEAN storage system depending on the agreed scope of services will be
a) installed at the jointly agreed installation location,
b) connected with the electricity system of the respective, and
c) commissioned
by TESVOLT OCEAN.
9.3. The customer is obliged to check and create the necessary conditions for the installation and/or commissioning of the TESVOLT OCEAN storage system at his own expense and to take all necessary measures to protect the delivery and installation personnel. This includes in particular
a) the provision of levelled, free and - if necessary - suitable access routes for heavy goods vehicles as well as the provision of free and levelled installation areas for the TESVOLT OCEAN storage system,
b) the installation or laying of the necessary electrical lines, distribution boards and supply systems for the vessel,
c) the provision of the necessary connections to the electrical wiring, distribution and supply systems,
d) the unsolicited provision of all necessary information on the location of concealed electricity, gas and water lines or similar installations as well as any necessary static information,
e) checking the electrical system at the installation site for suitability or establishing the suitability of the existing electrical system for the installation and operation of the TESVOLT OCEAN storage system, and
f) compliance with the applicable safety, health, employee protection and environmental protection regulations.
9.4. The customer shall provide the electricity and water required for the installation of the TESVOLT OCEAN energy storage at his own expense.
9.5. After the commissioning of the TESVOLT OCEAN storage system, the customer is obliged to accept the installation services of OCEAN. Acceptance requires countersigning the TESVOLT OCEAN commissioning protocol for the operability of the TESVOLT OCEAN storage system. Acceptance may not be refused on the grounds of insignificant defects.
9.6. If the customer refuses to declare acceptance of the installation services, acceptance shall nevertheless be deemed to have taken place if the customer uses the TESVOLT OCEAN storage system in the manner intended, the preconditions for acceptance pursuant to Section 8.5 are met, TESVOLT OCEAN has set an appropriate deadline for declaration of acceptance by the customer and TESVOLT OCEAN has informed the customer at least in text form of the fiction of acceptance and its consequences.
9.7. TESVOLT OCEAN always executes the commissioning or trial operation of the TESVOLT OCEAN storage system on behalf of the customer. At no time does TESVOLT OCEAN itself become the operator of the TESVOLT OCEAN storage system. The customer shall be responsible for all rights and obligations of the operator of an energy storage system in accordance with the applicable legal provisions. This includes in particular the fulfilment of energy and tax law obligations with regard to the operation of the TESVOLT OCEAN storage system, reporting and notification obligations and obligations to pay taxes, fees and levies on the stored and withdrawn electricity.
10. What are the insurance obligations?
10.1. TESVOLT OCEAN shall maintain a business liability insurance with a minimum coverage of EUR 5,000,000 per loss event for personal injury and property damage and shall provide proof to the customer upon request.
10.2. TESVOLT OCEAN shall insure the TESVOLT OCEAN storage system against fire, water, theft and transport damage until the transfer of risk in accordance with Section 12
10.3. The customer is obliged to maintain an all-risks insurance at replacement value via the TESVOLT OCEAN storage system from the transfer of risk in accordance with Section 13 until the transfer of ownership in accordance with Section 13 his own expense. If it is objectively not possible or economically unreasonable for the customer to take out an all-risks insurance policy, the TESVOLT OCEAN storage system must at least be insured against fire, water, theft and transport damage at replacement value. The customer hereby assigns to TESVOLT OCEAN any claims it may have against its insurance company in the event of damage, insofar as they relate to the ownership or co-ownership of TESVOLT; TESVOLT OCEAN accepts the assignment.
11. Which other obligations has the customer?
11.1. The customer shall be obliged to grant OCEAN, or third parties commissioned by OCEAN, unhindered and safe access to the TESVOLT OCEAN storage system insofar as this is necessary for the installation and commissioning of the TESVOLT OCEAN storage system or for the implementation of measures to eliminate defects.
11.2. In the event that the customer's e-mail addresses known to TESVOLT OCEAN change or lose their validity, the customer is obliged to inform TESVOLT OCEAN accordingly and, if necessary, to provide a new e-mail address for communication with OCEAN.
12. When does the customer bear the risk of accidental loss of the TESVOLT OCEAN storage system?
12.1. The risk of accidental loss and accidental deterioration of the TESVOLT OCEAN storage system shall pass to the customer depending on the agreed place of fulfilment and the agreed transport clause according to the INCOTERMS valid at the time of the conclusion of the contract.
12.2. Insofar as the handover and mode of transport EXW is agreed in accordance with Section 7.1 Sentence 2, the risk of accidental loss shall pass to the customer with the provision of the TESVOLT OCEAN storage system at the works (EXW chosen production site by TESVOLT OCEAN)
12.3. Also if the parties have agreed upon the installation and commissioning of the TESVOLT OCEAN storage system in addition to the delivery according to Section 9.1 risk of accidental loss shall pass to the customer upon handover of the TESVOLT OCEAN storage system to the customer. As far as the handover of the TESVOLT OCEAN storage system and its installation take place on different dates, the customer is obliged to store the TESVOLT OCEAN storage system properly from the time of handover and to protect it against damage, freezing, destruction, loss and against unauthorized access by third parties.
13. Does a retention of title apply to the TESVOLT OCEAN storage system?
13.1. TESVOLT OCEAN retains ownership of the TESVOLT OCEAN energy storage system until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even in the event that TESVOLT OCEAN does not always expressly refer to this. The retention of title thus serves to secure all currently existing and future claims arising from the supply relationship between TESVOLT OCEAN and the customer.
13.2. As long as ownership has not yet been transferred, the customer must inform TESVOLT OCEAN immediately in writing if the delivered TESVOLT OCEAN energy storage system is seized or exposed to other interventions by third parties. Furthermore, the customer shall immediately point out that the TESVOLT OCEAN energy storage system is the property of OCEAN. Furthermore, the customer is obliged to provide TESVOLT OCEAN with all information and documents required for a third-party claim proceeding in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse TESVOLT OCEAN for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the resulting loss.
13.3. During the existence of the retention of title, the TESVOLT OCEAN energy storage system may not be pledged or otherwise encumbered with the rights of third parties. However, the customer is authorized to use the TESVOLT OCEAN energy storage system or to resell it to a third party ("end customer") in the ordinary course of business without disclosing the existing retention of title. For his part, he may agree a retention of title without this transferring the reserved ownership of TESVOLT OCEAN to the end customer. The customer'sclaims from a resale are already now assigned in full to OCEAN. If the TESVOLT OCEAN energy storage device is sold by the customer together with other goods not belonging to OCEAN, the claim shall only be assigned to TESVOLT OCEAN in the amount of the purchase price agreed between the customer and OCEAN.
13.4. To secure the claims against the customer, the customer also assigns to TESVOLT OCEAN such claims against a third party that accrue to the customer through the connection of the TESVOLT OCEAN energy storage system or components of the TESVOLT OCEAN energy storage system with a property. TESVOLT OCEAN hereby accepts the assignment. Until revoked, the customer is entitled to collect the claims assigned to OCEAN. TOCEAN's right to collect the claim itself remains unaffected. However, TESVOLT OCEAN will not collect the claim itself as long as the customer is not in default with its payment obligations from the delivery contract.
13.5. TESVOLT OCEAN undertakes to release securities to which TESVOLT OCEAN is entitled at the customer's request insofar as their value exceeds the claims to be secured by more than 20%.
14. Which regulations apply to software- and copyright protection?
14.1. The customer is granted a non-exclusive and non-transferable right of use for the software included in the scope of delivery for the operation and monitoring of the TESVOLT OCEAN storage system including its documentation. Software is provided exclusively for use on the delivered TESVOLT OCEAN storage system.
14.2. Any further use by the customer or third parties beyond the scope of a backup copy made for own purposes is not permitted. Prohibited uses are in particular any duplication, revision or translation of the software, as well as a conversion of object code into source code.
14.3. TESVOLT OCEAN reserves the right of ownership and copyright to illustrations, drawings and calculations. These documents and data may not be made accessible to third parties. This applies in particular to documents and data that are designated as confidential. The customer requires the express written consent of TESVOLT OCEAN before passing them on to third parties.
15. What warranty rights does the customer have in the event of defects?
15.1. In the event of defects, TESVOLT OCEAN shall, at its option, remedy the defect or deliver a replacement. In the event that the defect is remedied, TESVOLT OCEAN shall bear the transport, travel, labour and material costs. § 445a BGB (German Civil Code) remains unaffected by this.
15.2. The customer's warranty rights require that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code) and has notified any defects found in accordance with Sections 7.5 - 7.7
15.3. If TESVOLT OCEAN has not properly fulfilled its obligations within a reasonable period of time, which enables TESVOLT OCEAN to carry out at least two attempts at rectification, the customer shall be entitled, at his option, to reduce the remuneration or to withdraw from the contract. Withdrawal is, however, excluded if the defect is minor.
15.4. The battery cells contained in the TESVOLT OCEAN storage system are subject to a continuous reduction in performance (so-called degradation) due to ageing of the materials or the reduction in the efficiency of battery cells caused by ageing. This degradation does not constitute a material defect but is regarded as an agreed condition of the TESVOLT OCEAN storage system. A deep discharge due to a failure to cycle the TESVOLT OCEAN storage system after the time of handover, as well as the natural wear and tear of wear parts of the TESVOLT OCEAN storage system (e.g. fans or filters), do not constitute a material defect.
15.5. In case of warranty TESVOLT OCEAN is entitled to replace either individual defective parts of the TESVOLT OCEAN storage system or to replace the complete module of the TESVOLT OCEAN storage system.
15.6. The limitation period for warranty claims for defects is two years. It begins with the handover of the item to the customer.
§ 445b BGB (German Civil Code) remains unaffected by this.
15.7. Place of rectification is the place of fulfilment according to Section 7.1. unless otherwise provided for in Sections 15.8 and 15.9.
15.8. If the TESVOLT OCEAN storage system is not located at the place of rectification pursuant to Section 15.7 time of the warranty claim, but in a country that was or is a TESVOLT OCEAN Support Country pursuant to Section 15.10 warranty claim or at the time of the conclusion of the contract, TESVOLT OCEAN shall carry out the rectification at the location of the TESVOLT OCEAN energy storage system without additional costs for the customer.
15.9. If the TESVOLT OCEANstorage system is not located at the place of rectification at the time of the warranty claim and not in a country that was or is a TESVOLT OCEAN support country pursuant to Section15.10 warranty claim or at the time of the conclusion of the contract, the customer can demand rectification by TESVOLT OCEAN at the location of the TESVOLT OCEAN storage system if
a) the customer undertakes to bear all additional costs incurred by TESVOLT OCEAN as a result of rectification at the location of the TESVOLT OCEAN storage system in comparison with rectification at the location of rectification in accordance with Section 15.7; this applies in particular to the costs incurred for the inspection, removal and replacement of the TESVOLT OCEAN storage system, the costs incurred for the dispatch of a replacement TESVOLT OCEAN storage system and for the costs incurred for the return transport (including costs for export certificates, inspections and customs duties) as well as for the travel costs of employees of TESVOLT OCEAN or of third parties commissioned by TESVOLT OCEAN with the inspection of the warranty case or rectification; and
b) the customer has paid an advance to TESVOLT OCEAN which fully covers the expected additional costs incurred by TESVOLT OCEAN in accordance with a. above.
15.10. The countries in which TESVOLT OCEAN currently provides support (TESVOLT OCEAN support countries) are listed below:
Germany, Netherlands, Belgium, Austria, France, Spain, Portugal, Poland, Denmark, Croatia, Slovenia, Slovakia, Italy, Greece, Ireland, Sweden, Finland, Turkey, Australia, United Kingdom, Switzerland
15.11. The parts of the TESVOLT OCEAN storage system, which are disassembled and replaced in the course of a measure to eliminate a defect, become the property of TESVOLT.
15.12. In the event of a warranty claim, the customer shall be obliged to provide TESVOLT OCEAN with all information necessary for the examination of the warranty claim and, if applicable, for rectification and to cooperate in the examination of the warranty claim and, if applicable, the rectification, in particular
a) to send TESVOLT OCEAN the commissioning protocol of the TESVOLT OCEAN storage system unless the commissioning protocol has already been sent to OCEAN;
b) to provide TESVOLT OCEAN or a third party assigned by TESVOLT OCEAN with the logging file of the TESVOLT OCEAN storage system if possible, or provide TESVOLT OCEAN or a third party assigned by TESVOLT OCEAN with access to the logging file or make all necessary declarations so that TESVOLT OCEAN or a third party assigned by TESVOLT OCEAN receives the logging file or access to the logging file from the third party;
c) to provide TESVOLT OCEAN or a third party assigned by TESVOLT OCEAN with remote access to the TESVOLT OCEAN monitoring software contained in the TESVOLT OCEAN storage system; TESVOLT OCEAN or a third party assigned by TESVOLT OCEAN shall instruct the customer how to do so; and
d) to provide TESVOLT OCEAN or a third party assigned by OCEAN upon request, with information on repair, care and maintenance measures carried out on the TESVOLT OCEAN storage system, such as maintenance protocols.
15.13. Claims of the customer against OCEAN, which are based on a separate manufacturer guarantee or a separate service contract, remain unaffected.
16. How is TESVOLT OCEAN liable beyond that?
16.1. TESVOLT OCEAN shall be liable without limitation for intent and gross negligence.
16.2. TESVOLT OCEAN shall only be liable for slight negligence - except in the case of injury to life, body or health of a person - if essential contractual obligations are breached. In this case, liability is limited to the foreseeable damage typical for the contract. Essential contractual obligations of TESVOLT OCEAN are, i.e. such obligations which arise from the nature of the contract and the fulfilment of which makes the proper performance of the contract possible in the first place and on the fulfilment of which the customer therefore relies and may rely (Kardinalpflichten). In this case, liability is limited to the damage that TESVOLT OCEAN foresaw as a possible consequence of the breach of contract when concluding the contract or should have foreseen taking into account the circumstances that TESVOLT OCEAN knew or should have known.
16.3. Liability for indirect and unforeseeable damage, loss of use, loss of profit, loss of savings and financial loss due to claims by third parties shall be excluded in cases of simple negligence - except in cases of injury to life, limb or health of a person and breach of fundamental contractual obligations (cardinal obligations).
16.4. The foregoing limitations or exclusions of liability shall not apply to statutory mandatory strict liability (e.g. in accordance with the Product Liability Act) or liability under a strict guarantee.
16.5. Insofar as liability is excluded or limited pursuant to Sections 16.2 and 16.3 also apply to the personal liability of the em- ployees, representatives, organs and vicarious agents of TESVOLT.
16.6. TESVOLT OCEAN shall not be liable for damages caused by improper operation by the customer or third parties, improper operation or handling by the customer, actions of third parties or events of force majeure. This also applies in particular to damage resulting from coupling with incompatible third-party devices and damage resulting from outdated software on the TESVOLT OCEAN storage system if the customer has not installed updates provided contrary to Section 5.5.
16.7. Furthermore, TESVOLT OCEAN shall not be liable for damage if the customer or a third party intervene in an improper manner with the TESVOLT OCEAN storage systems or if the customer has not fulfilled his obligations and duties to cooperate 9 late or inadequately and the occurrence of the damage is attributable to this or the cause of the damage falls within the area of responsibility of the customer, his vicarious agents or other third parties.
17. When may TESVOLT OCEAN or the customer withdraw from the contract?
17.1. In addition to the statutory rights of withdrawal, TESVOLT OCEAN is entitled to withdraw from the contract if the customer does not fulfill its contractual obligations, in particular the contractually agreed creation of the necessary prerequisites for handover, as well as for installation and/or commissioning of the TESVOLT OCEAN storage system in accordance with Section 9, and abstains from doing so despite a reminder and a reasonable grace period, and if TESVOLT OCEAN is therefore unable to provide the agreed services.
17.2. TESVOLT OCEAN is entitled to withdraw from the contract if the delivery or installation of the TESVOLT OCEAN storage system conflicts with national or international export control regulations, in particular embargos or other sanctions. TESVOLT OCEAN is also entitled to withdraw from the contract if the customer does not comply with his obligation according to Section 7.3.
17.3. The customer is entitled to withdraw from the contract beyond the statutory rights of withdrawal if a binding delivery or installation date is exceeded by at least three months for reasons for which TESVOLT OCEAN is responsible.
17.4. The withdrawal must at least be declared in text form to the respective contractual partner.
17.5. The assertion of further claims remains unaffected in the event of withdrawal.
18. What applies in cases of force majeure?
18.1. If the parties are prevented from fulfilling their obligations due to force majeure, e.g. terror, war, industrial action at their own works, damage to installations, orders from higher authorities or other circumstances which are beyond their control or which cannot be averted with a reasonable technical and/or economic effort, their contractual obligations to perform shall be suspended.
18.2. If one of the parties is prevented from performing its contractual obligations due to force majeure, the parties shall be released from their contractual obligations to the extent that and as long as these circumstances and their consequences persist and have not been finally remedied. If one party is prevented from fulfilling its contractual obligations due to force majeure, the corresponding performance obligation of the other party shall lapse to the same extent.
18.3. The parties shall inform each other immediately about the occurrence of those circumstances and their expected duration. The same applies to the elimination of these circumstances.
18.4. The parties will make all reasonable effort to remedy the impediment to perform to meet their obligations as soon as possible.
19. Is the operating data of the TESVOLT OCEAN storage system transferred?
19.1. As far as it is technically possible for the customer, the customer shall set up continuous Internet access from the time of commissioning the TESVOLT OCEAN storage system, maintain it until the end of the warranty period and continuously transmit the operating parameters of the TESVOLT OCEAN storage system to OCEAN.
19.2. TESVOLT OCEAN undertakes to collect and process the transmitted data exclusively for the purpose of identifying defects in the TESVOLT OCEAN storage system and remedying them, unless the customer expressly consents to any other use of the data.
20. What applies in the event of sanctions?
20.1. The fulfilment of the contract with the customer is subject to the provision that there are no obstacles to fulfilment based on national or international regulations of foreign trade law and no embargos and/or other sanctions.
20.2. In the event of onward delivery or other transfer of TESVOLT OCEAN storage systems to third parties in Germany and abroad, the customer shall comply with all sanction regulation applicable in the respective country, in particular sanction regulation issued by the Council of the European Union. The customer may not directly or indirectly sell, deliver, transfer or export goods that fall within the scope of Article 12g of Regulation (EU) No. 833/2014 to the Russian Federation. The customer shall undertake its best efforts to ensure that the purpose of this prohibition is not frustrated by any third parties further down the commercial chain, including by possible resellers. The customer shall inform TESVOLT OCEAN immediately of any problems it becomes aware of in the application of this prohibition standard, including any relevant activities by third parties that could frustrate the purpose of this prohibition.
20.3. In the event of a breach of the above provision, TESVOLT OCEAN shall also be entitled to terminate existing contracts in addition to claiming damages.
20.4. TESVOLT OCEAN notes that TESVOLT OCEAN storage systems or their components may be "dual-use goods" which are used for both civil and military purposes and may be subject to sanctions accordingly.
21. Where can I find information on data protection at TESVOLT OCEAN?
21.1. The personal data collected by TESVOLT OCEAN in the course of preparing an offer, ordering, executing an order and operating TESVOLT OCEAN storage systems are automatically stored and processed by OCEAN. They are processed and used exclusively within the scope of the purpose of this contractual relationship (e.g. for invoicing and customer service) in compliance with the applicable data protection provisions of the EU General Data Protection Regulation (GDPR). The collection, processing or use of data for any other purpose beyond the scope of Section 19.2 and Section 21.1 Sentence 1 shall not take place unless the customer has given his express consent.
21.2. The data privacy protection can be viewed in detail on the TESVOLT OCEAN website at https://www.tesvolt-ocean.com/en/privacy.html.
22. May TESVOLT OCEAN carry out a credit check?
22.1. The customer agrees that TESVOLT OCEAN may check his creditworthiness (solvency or default risk). For this purpose, TESVOLT OCEAN may obtain information on creditworthiness relevant features from the following credit agencies prior to conclusion of the contract:
a) SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden, Germany
b) Creditreform Association, Hellersbergstraße 12, 41460 Neuss, Germany
c) Euler Hermes SA, Friedensallee 254, 22763 Hamburg, Germany
22.2. In the event of a deterioration of the customer's creditworthiness after the conclusion of the contract, TESVOLT OCEAN may demand a change in the terms of payment. If the customer rejects the change, TESVOLT OCEAN is entitled to withdraw from the contract.
22.3. If the customer wishes information about the data stored about him at the credit agencies, he receives it directly from the companies mentioned in Section 22.1
23. Which law and which place of jurisdiction do apply?
23.1. German law shall apply exclusively to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.
23.2. The exclusive place of jurisdiction for all disputes arising from or in connection with contractual relationships between the customer and TESVOLT OCEAN shall be the registered office of OCEAN. However, TESVOLT OCEAN is also entitled to sue the customer at his place of business.
23.3. The invalidity of individual provisions shall not affect the validity of the remaining provisions.
by Cicero Design
German