Terms And Conditions
§1 General, Scope
- These general terms and conditions (“Terms”) apply to the use by a user (“User”) of the online marketplace (“Marketplace”) for photovoltaic products and related equipment and services (hereinafter altogether termed “PV Products”), as operated under the domain pvxchange.com by pvXchange Trading GmbH, Ingolstädter Str. 1-3, 28219 Bremen („pvXchange“), and to the facilitating and brokering by pvXchange of direct agreements between Users regarding PV Products.
- These Terms shall only apply to Users who use the portal as entrepreneurs. An entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
- These Terms apply exclusively. Any conflicting or deviating terms and conditions of the User are not a part of the agreement and shall not be accepted unless pvXchange has expressly agreed to their application. This also applies if pvXchange performs its services without reservation and in full knowledge about conflicting or deviating terms and conditions of a User.
- These Terms shall not apply to agreements about PV Products, e.g. purchasing agreements, which Users enter into with each other or which pvXchange enters into with a User.
§ 2 pvXchange Services and Conclusion of Agreements about PV Products
- The marketplace under pvxchange.com is a platform for facilitating and brokering of agreements about PV Products between entrepreneurs. Such Users who are offering PV Products shall hereinafter be termed “Supplier”, and such Users who are interested in purchasing such PV Products, “Buyers”. pvXchange may act as a Supplier as well.
- Suppliers communicate their offers to pvXchange. Based on these offers and offers of its own (of pvXchange), pvXchange will then generate sample offers for PV Products which will be forwarded to registered Users in the form of a newsletter, and published on the internal (non-public) part of the Marketplace.These sample offers shall not be legally binding butinstead are meant to provide an overview to potential Buyers of PV Products and terms and conditions which are currently available. However, a Supplier shall have no claim against pvXchange that pvXchange shall actually have to include the Supplier’s offer in the sample offers.
- In case a Buyer is interested in one or more of the sample offers, he may contact pvXchange in order to inquire for more detailed information, for example using the “Request Quote” function (website) or “Contact” function in the newsletter.
- Based on the Buyer’s request, pvXchange will then prepare a selection of specific offers which, in pvXchange’s opinion, relate to the Buyer’s requirement according to his request, and communicate this selection to the Buyer by email. Initially, these offers shall be anonymized, unless pvXchange itself is the Supplier. They will however contain the specific terms and conditions of the Supplier for his offer, which have been pre-negotiated between pvXchange and the Supplier (exact product specification, prices and payment terms, delivery times etc.). These offers shall however still be without obligation or engagement and shall be subject to availability at the Supplier’s.
- In case the Buyer agrees to the terms of one of the communicated offers he will communicate this to pvXchange, specifying the offer in question. This communication shall be deemed a binding offer to pvXchange to communicate the direct contact to the Supplier of said offer. Subsequently, pvXchange will communicate to both the Supplier and the Buyer the respective other’s contact information. The binding conclusion of an agreement shall then take place between the Supplier and the Buyer directly.
- Unless pvXchange is acting as Supplier itself, it sahll not become party to any agreements regarding PVProducts between Users.
§ 3 Registration, User Account, and Term of the Agreement
- Using the Marketplace requires registration. The Marketplace services are only available to registered Suppliers and Buyers. For the purpose of registration, Potential Users shall have to fill in the online registration form completely and truthfully and also demonstrate that they are indeed acting as an entrepreneur (see definition in section 1.2) by sending a current and appropriate certificate of incorporation/registration at the company register or some similar documentation to pvXchange. pvXchange reserves the right to refuse registration without giving reasons.
- Following successful registration and verification of the entrepreneur status, the potential User will receive by email login details consisting of a User ID code (customer ID code) and a password (code word). Users must keep these login details secret and must ensure that misuse by third parties is prevented. Users shall in principle by liable for all activities which are conducted through their accounts. Users are obliged to inform pvXchange immedialety if there is evidence that their user account has been compromised by a third party.
- Registered Users are obliged to inform pvXchange about all changes in regard to their company data (in particular the legal form and status of the company), personal data and address information, and to provide appropriate documentation in this regard. pvXchange has the right to supend a User account, also temporarily, if it comes to pvXchange’s attention that there are significant changes to the User’s company status which have not been personally communicated or confirmed.
- Users may us the services provided by pvXchange, including but not limited to all data, offer data and information, only for their immediate own use. In particular, it is prohibited to forward to third parties any of the product information, offer, company or personal data obtained without pvXchange’s consent, and in particular, to trade such data.
§ 4 Term, Termination and Storing the Text of the Agreement
- The User may terminate his user account and, with this, the Agreement about using the Marketplace at any time. pvXchange may terminate this Agreement with one month notice. The right to terminate for good cause shall remain unaffected.
- The termination shall have no effect on the Supplier’s obligation to pay the agreed commission for transactions brokered and follow-on transactions; the provisons set forth in section 6 therefore shall survive the termination, except in case the the termination is made by the Supplier for a good cause for which pvXchange is responsible.
- Notices of termination mustbe made in writing (e.g. letter, email or fax).
- A User’s registration for the Marketplace shall be stored by pvXchange with the data provided by the User. The User may see and review the user data stored in regard in his profile in the user area. The User may at any time access and retrieve the current version of these Terms on the Marketplace under the menu item “General Terms and Conditions” (or “AGB” in German); however, obsolete versions will not be held available there. The User may furthermore print or download this document and the user data stored in his profile in the user area, for example by using the relevant functions of the software he uses to access the internet (browser software, typically by selecting “print” or “save as”). There is no further way for the User to see and review the Agreement about using the Marketplace and pvXchange’s brokering services.
§ 5 Commission for Transactions brokered and Follow-on Transactions
- In principle, Suppliers and Buyers may use the Marketplace free of charge. However, in case a Supplier and a Buyers, following the facilitating and brokering services provided by pvXchange under this Agreement, enter into an agreement about the sale or providing of PV Products, the Supplier shall pay a commission fee to pvXchange. The exact amount of the commission fee shall be agreed between the Supplier and pvXchange separately.
- Follow-on transactions between Suppliers and Buyers which are entered into within 6 months after a transaction brokered by pvXchange under this Agreement, shall also be subject to a commission fee, with this commission fee being determined pursuant to the same terms and conditions as the original transaction. In case these terms and conditions cannot be applied to the follow-on transaction the Parties shall agree on a different commission fee, with the percentage nontehelss being based on the commission fee with the incurred original transaction. The Supplier must make sure that subsequently, all follow-on transactions which are subject to a commission fee are concluded with the participation of pvXchange, and must therefore, if he is approached by the Buyer, direct the Buyer to pvXchange. He direct conclusion of a transaction without involving pvXchange shall not be permitted. All this does not apply to transactions regarding products and services which are not PV Products. In the event that the Supplier enters into an agreement directly with a Buyer which is subject to the commission fee, without involving pvXchange, the Supplier shall pay to pvXchange a compensation of 10% or the net remuneration payable by the Buyer to the Supplier according to said follow-on transactions.
- The commission and the compensation, as applicable, shall be payable upon the conclusion of the respective agreement between the Buyer and the Supplier, and shall be plus value added tax.
- In order to allow the determination of the commission fee or the compensation, as applicable, the Supplier is obliged to inform pvXchange without delay about the relevant terms and conditions of his agreement with the Buyer, in particular the purchase price and the type and number of the products or services sold. This shall typically be done by sending a copy of the order confirmation or similar meaningful documents.
- In the event that an offer communicated to the Supplier pursuant to section 3.5 is not accepted, or if the Supplier and the Buyer eventually agree on different terms and conditions, the Supplier shall inform pvXchange about this without delay, too, and also give the reason why the offer was not accepted or why the terms and conditions were changed. In case the Supplier and the Buyer have agreed on different terms and conditions, pvXchange may claim an increase of the commission fee if the price or the numbers have increased compared to the original offer.
§ 6 No pvXchange Obligation to Review; Buyer’s Obligations
- pvXchange does not review the offers of other Suppliers which are communicated to a Buyer, in particular not in regard to whether they are appropriate, correct, or complete. The Buyer is solely responsible to review the offers and, if necessary, the Suppliers.
- The Buyer is obliged to review and test the suitability of PVProducts himself before installation, at the latest instance. The Supplier’s conractual products and services are determined solely by the agreement between the Buyer and the Supplier. The relevant technical specifications of the PV Products may only be taken from the technical specifications provided by Supplier or the manufacturers, but not from the information and data provided by pvXchange in the course of brokering the agreement pursuant to section 2.
§ 7 Supplier’s Obligations
- The Supplier shall describehis offers and his products and services correctly, precisely and completely, and he must clearly indicate any limitations, restrictions, or non-committal respresentations. The Supplier shall describe clearly and exactly all relevant features and characteristics of the products and services which may be relevant for the Buyer’s purchasing decision, and all defects or shortcomings which may lead to a reduction of the products and services in value. The Supplier shall provide information on the terms of delivery and payment. The Supplier shall be liable for the correctness and completeness of the the information provided by him on the Marketplace.
- In regard to offers which have been communicated, the Supplier shall inform pvXchange without delay if the relevant products or services are totally or partially sold-out or otherwise not available any more. The same applies in case of any change of product or service quality, as soon as the Supplier gains knowledge of such quality changes.
§ 8 Liability
- pvXchange shall be liable according to statutory law for damages suffered by a User that were caused by intentional or grossly negligent behavior on the part of pvXchange or its vicarious agents. The same applies to personal injury and damages under the German Product Liability Act (Produkthaftungsgesetz).
- In all other cases, pvXchange's liability for damages – based on any legal grounds whatsoever – shall be limited as stipulated in the provisions below unless a guarantee accepted by pvXchange specifies otherwise. pvXchange shall only be liable for damages caused by slight negligence to the extent that such damages result from violating essential contractual obligations (cardinal duties), i. e. such obligations whose fulfillment is a prerequisite for properly fulfilling the contract and which pvXchange may normally expect. Accordingly, insofar as pvXchange is thus liable for slight negligence, pvXchange's liability shall be limited to the typically foreseeable damage.
- The above provisions shall apply accordingly to a limitation of the obligation to indemnify for futile expenses (section 284 German Civil Code).
- The above limitations of liability shall apply in favour of pvXchange's vicarious agents as well.
§ 9 Choice of Law and Venue
- These Terms and the entire contractual relationship between pvXchange and the User are subject to the laws of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- If the User is a merchant (in terms of the German Commercial Code, HGB), a public law legal entity or a special public law fund, the exclusive venue for all current and future claims directly or indirectly arising out of or in connection with the contractual relationship between the parties, shall be Bremen, Germany. The same venue shall apply if the User does not have a domestic general venue in Germany, or if he has moved his residence or usual place of abode to another country after conclusion of the contract, or if his residence or general abode is unknown at the time the law suit is filed. pvXchange may, however, also file a lawsuit at the User’s general venue.
§ 10 Modifications of these Terms; Severability Clause
- pvXchange may change these Terms at its sole discretion from time to time, provided that pvXchange notifies the User of such changes (the “Modifications”) in text form (email is sufficient), particularly highlighting any differences with regard to the version previously in force. The User may object to such Modifications according to the following provisions: The User shall send its objection to the Modifications to pvXchange by email to the email address firstname.lastname@example.org or in writing, within one (1) month after receipt of pvXchange’s notification concerning the Modifications. To comply with the time limit, the objection must be received by pvXchange, within the time limit. If the User does not object in due form and time, the Modifications shall be deemed accepted and the modified General Terms and applicable Special Terms shall become an integral part of the Agreement. The pvXchange Modification notice will expressly refer to this consequence and to the form and term of the objection. In the event of the User objecting in due form and time, the Agreement will remain in force in its unaltered version.
- In the event that parts of these Terms are invalid, the remaining provisions shall remain unaffected.