Terms and conditions of business
HANWHA Q CELLS GMBH (“Q CELLS”)
COMMERCIAL REGISTER ENTRY
Head office: Bitterfeld-Wolfen
Stendal District Court
HRB [commercial register] 18663
Tax number: 116 / 107 / 06438
VAT ID no.: DE284757331
Bitterfeld-Wolfen tax office
TERMS AND CONDITIONS OF BUSINESS
1. Scope and changes to the Terms and Conditions of Business
1.1 changes and collateral agreements in respect to the Terms and Conditions of Business shall only become effective if Q CELLS agrees to these in writing. Divergent Terms and Conditions of Business on the part of the customer shall not apply. Nor do they apply if Q CELLS does not explicitly contradict them.
1.2 If divergent terms and conditions are agreed in the electricity supply contract and/or tariff sheet, these shall take priority over the regulations of these Terms and Conditions of Business.
1.3 The regulations of the electricity supply contract and these terms and conditions are based on the statutory and other framework conditions at the time the contact is concluded (e.g. Energy Industry Act, Electricity Basic Supply Ordinance, Electricity Grid Access Ordinance, Metering Point Operation Law, supreme court legislation, rulings of the Bundesnetzagentur).
1.4 Q CELLS is entitled to enter change the regulations of the electricity supply contract as well as its Terms and Conditions of Business, insofar as unforeseeable changes occur after conclusion of contract, which have not been initiated by Q CELLS and on whose occurrence Q CELLS does not have any influence. Changes in this context can result in particular from
1.4.1 change to the statutory principles,
1.4.2 new, definitively effective legislation, which has a consequence on the effectiveness of individual regulations of the electricity supply contract or these Terms and Conditions of Business, or
1.4.3 new or amended stipulations of the regulation or supervisory authorities.
1.5 Excepted form this is the passing on of price changes according to Paragraph 5 and price adjustments according to Paragraph 6.
1.6 A change or amendment to the electricity supply contract as well as these Terms and Conditions of Business shall only be made insofar as there is a requirement to restore the equilibrium of the contractual services (equivalence interest) or close any resultant gaps in the regulations, which result in not insignificant difficulties in the execution of the electricity supply contract, and the law does not contain any regulation. The possibility of a change is restricted to only the provisions whose change is necessary as part of this determination. The customer may not be placed in a significantly worse position by the changes resulting after conclusion of contract than what they were in upon conclusion of contract.
1.7 The respective changes to the electricity supply contract or the Terms and Conditions of Business shall be announced in text form by the customer at least six weeks before the planned coming into effect. The customer has the option of objecting to the changes in text form until the time when the changes are planned to come into effect. The timely submission of the objection is sufficient to comply with the deadline. The changes are deemed to be approved if no objection is received within the deadline. Besides this, the customer can terminate the contract without observing a period of notice, but the termination must be indicated in text form at least two weeks before the changes come into effect. Q CELLS shall point out to the customer the consequences of an omitted objective and the right to termination of the electricity supply contract without notice separately upon announcement of the changes.
2. Establish of relation with the customer, start of the electricity supply
2.1 Q CELLS shall supply the customer with their total cabled requirement for electrical energy at the market location(s) of the customer resulting from the data in the electricity supply contract. The option for coverage of the electricity needs of the customer from self-generated electricity shall remain unaffected by the obligation pursuant to clause 1. The operation of such a self-generation plant must be indicated to Q CELLS no later than four weeks before commissioning.
2.2 The electricity supply contract based on the customer relation shall arise as soon as Q CELLS confirms the customer’s order in text form, but no later than commencement of supply to the customer. It is a prerequisite for the commencement of supply for all necessary prerequisites (e.g. termination of the previous supply contract) to be established. The establishment of these prerequisites is incumbent upon Q CELLS and shall be done free of charge. The customer is obliged to obtain the electricity exclusively from Q CELLS for their market location and only use this for their own supply. A transfer to third parties is impermissible.
2.3 Insofar as a modern measuring device or an intelligent measuring system (smart meter) has to be installed according to the selected tariff, in order to enable the actual consumption by the customer to be recorded in real time, the installation and commissioning of the modern measuring device or intelligent measuring system is a prerequisite for the electricity supply contract.
2.4 The precise date on which Q CELLS shall commence the electricity supply shall be indicated to the customer in text form as soon as Q CELLS has received the necessary confirmations from the local network operator and from the pre-supplier. The supply shall not commence before expiry of the objection period pursuant to Sections 355 paragraph 2, 356 Paragraph 2 Number 2 German Civil Code, unless the customer has requested Q CELLS to do so.
2.5 Q CELLS reserves the basic right to refuse acceptance of the contract without indicating reasons.
3. Online Kommunikation
3.1 The electricity product offered by Q CELLS is sold via the Internet. Corresponding to this sales model, all legal business transactions e.g. notifications, confirmations, offers, acceptances as well as public announcements can also be realised divergent from the Electricity Basic Supply Ordinance in text form, e.g by email.
4. Prices and price components
4.1 The customer shall pay the price indicated in the electricity supply contract or tariff sheet for the electricity supplied by Q CELLS. The price comprises a basic price and a consumption-dependent energy rate price.
4.2 Basic energy price includes costs for sales, customer care and billing.
4.3 The basic energy price also includes the basic price of the grid charges applicable for the customer as well as the annual costs of the metering point operation, unless these are included in the grid charges.
4.4 The energy rate price includes costs for the energy procurement, sale, billing, customer care and procurement of green electricity certificates.
4.5 The energy rate price also includes the grid charges and concession fees applicable for the customer as well as the following universally applicable levies:
4.5.1 Levy according to the Renewable Energies Act (EEG levy)
4.5.2 Levy according to the Combined Heat and Power Act (KWKG levy)
4.5.3 Levy according to Section19 Paragraph 2 of the Electricity Grid Charge Regulation Ordinance (Section 19 StromNEV levy)
4.5.4 Levy according to Section 17f Paragraph 5 of the Energy Industry Act (offshore liability levy)
4.5.5 Levy according to Section 18 of the Ordinance on Interruptible Loads (AbLaV levy)
4.5.6 as well as the electricity tax.
4.6 The price components that cannot be influenced for Q CELLS according to Sections 4.3 and 4.5 shall be passed on to the customer 1:1 without any surcharge by Q CELLS.
4.7 Depending on the tariff selected, parts of the energy rate price according to Section 4.4 can also be calculated by external factors or these transferred 1:1 as price components (e.g. hourly market prices).
4.8 All price components are increased by the applicable value added tax stipulated by law.
4.9 Individual details concerning the costs of the energy procurement and metering point operation as well as the values of all prices and price components applicable at the time the contract is concluded are derived from the electricity supply contract or the relevant tariff sheet.
5. 1:1 transfer of price changes and variable price components
5.1 Changes to the price components according to Section 4.5 shall become effective at the time of the entry into effect.
5.2 Insofar as a coupling with external factors such as the electricity market price is agreed according to Section 4.7 and the selected tariff, these factors are variable components of the energy rate price for the agreed period resulting from the tariff sheet.
5.3 Insofar as the amount of the price components indicated in Section 4.5 during the period of contract, Q CELLS is entitled in case of an increase to recalculate the increase retrospectively to the time point when the change to the relevant price component came into effect (also after compiling the annual bill or termination of the electricity supply contract). In case of a reduction in one of the price components indicated in Section 4.5 during the period of contract, Q CELLS is obliged to pass on the reduction to the customer retrospectively to the time point when the change came into effect. In case of an introduction of new statutory taxes, fees or other officially decreed expenses within the period of contract, Q CELLS is entitled to pass these on to the customer in the unchanged amount at the time they come into effect. If statutory taxes, fees or other officially decreed expenses no longer apply, Q CELLS is obliged to pass this on to the customer retrospectively to the time point when the change came into effect in the unchanged amount. The relevant amount of the universally applicable levies indicated in Section 4.5 can also be viewed at www.netztransparenz.de. The amount of the relevant applicable grid charges and concession costs can be seen on the website of the relevant network operator.
6. Price adjustments at reasonable discretion
6.1 In case of a change to the costs definitive for the formation of the basic price according to Section 4.2 for sales, customer care and billing, Q CELLS is entitled to change the basic price as part of a one-sided performance determination according to Section 315 German Civil Code by exercising reasonable discretion.
6.2 Likewise, Q CELLS is entitled in case of a change to the costs definitive for the formation of the energy rate price according to Section 4.4 to change the non-variable components of the energy rate price according to Section 5.2 by way of a one-sided performance determination according to Section 315 German Civil Code by exercising reasonable discretion.
6.3 In case of cost reductions Q CELLS, is obliged to make a price change. When determining the price, Q CELLS is obliged to only consider cost increases under the assumption of opposing cost reductions and perform a balancing of cost increases and cost reductions. Q CELLS shall also choose the relevant times and factual aspects of a price change when exercising its reasonable discretion so that cost reductions do not occur after less favourable benchmarks than cost increases, in other words cost reductions at least to the same extent price effective as cost increases. The customer is entitled according to Section 315 Paragraph 3 German Civil Code to have the exercising of reasonable discretion by Q CELLS examined judicially. Changes to the prices according to this section are only possible on the first of a month. Q CELLS shall inform the customer by email about the price change at least six weeks before the intended change. In case of a change to the prices announced in this way, the customer is entitled to terminate the contract without notice. The termination requires text form. Q CELLS shall point out the termination option to the customer separately with the announcement message. The right to extraordinary termination remains unaffected.
6.4 An increase in the energy rate price is excluded if as price guarantee has been agreed for the relevant supply period in relation to the energy rate price.
7. Measurement and metering point operation
7.1 The amount of the supplied energy is determined by the third party responsible for the measuring data determination (local network operator, basic responsible metering point operator, competitor metering point operator) at the relevant measuring location(s), of the measuring point according to Section 2 No. 11 Metering Point Operator Act, and communicated to Q CELLS.
7.2 The customer authorises Q CELLS in the electricity supply contract, to reach an agreement with the relevant metering point operator, according to which Q CELLS instead of the customer is obliged to pay the charges for the metering point operation to the metering point operator. Q CELLS shall make sure that an additional claim on the part of the customer in respect to these charges is excluded by the metering point operator.
7.3 The annual costs for the metering point operation depend on the electricity tariff selected by the customer and the measuring device installed or to be installed.
7.4 The customer is entitled to read from their measuring devices themselves. Q CELLS can demand a read-off from the customer themselves, unless this is unreasonable for the customer. Q CELLS shall request the self-reading from the customer in adequate time.
7.5 Insofar as a (modern) measuring device or an intelligent measuring system cannot be read off by Q CELLS without fault, or such are defective and do not communicate any measured values, Q CELLS can estimate the consumption based on the last read-off or in case of a new customer according to the consumption by comparable customers with reasonable consideration of the actual relations. This also applies if the customer does not make a self-reading announced in adequate time, or does so late. Claims according to these sections are limited to the read-off period prior to ascertaining the error, unless the effect of the error can be determined over a longer period; in this case the claim is limited to maximum three years.
8. Billing, instalments and payment terms
8.1 The electricity consumption is billed either monthly by the end of the billing period or annually by the end of the billing year, whereby the billing year and calendar year can differ from one another. If the consumption-dependent prices change within the billing period, the consumption definitive for the new prices shall be calculated according to the actual consumption (if measured), according to the load profile assigned by the network operator or pro rata temporis.
8.2 Insofar as the customer is not billed according to the consumption actually measured, the customer shall make instalment payments towards the annual billing. The amount of the instalment payment is calculated corresponding to the applicable consumption classification, which is generally specified by the network operator or metering point operator. If the customer shows probable cause that their consumption is less, this shall be considered appropriately. If the electricity price according to Section 5 or 6 changes, the instalment payments due after the change can be adapted corresponding to the price change.
8.3 The final billing is done based on the respective meter readings of the measuring location at the end of the billing period. The relevant commissioned metering point operator is responsible for determining the meter readings.
8.4 All billed amounts are due immediately, discounts according to Section 8.2 according to reasonable discretion of Q CELLS and shall be paid without deduction via SEPA direct debit or by bank transfer. Q CELLS is en titled to pass on to the customer the costs resulting from a chargeback from a direct debit due to the customer.
8.5 In case of payment arrears on the part of the customer, Q CELLS can charge the costs resulting from the renewed payment demand or by commissioning a third party for collection on a lump sum basis for structurally comparable cases and invoice these to the customer. The lump sum calculation must be easy to understand. The lump sum must not exceed the costs to be expected according to the normal course of matters. The calculation basis must be verified on request. The customer is entitled to demonstrate that the costs according to this section have not arisen or are significantly less than the amount of the lump sum.
8.6 In case of objections to the billing basis or deduction amounts, which do not concern Section 315 German Civil Code, the customer may only decline or defer the payment insofar as the serious probability of an obvious error exists or insofar as the consumption indicated in the bill is more than double the amount of the comparable consumption in the previous billing period and as long as the proper function of the measuring device has not been determined by a subsequent inspection of the measuring equipment.
9. Right of access
9.1 The customer is obliged to grant the agents wearing ID of Q CELLS, of the network operator or the metering point access to their premises and rooms, insofar as this is necessary for the contractual fulfilment, contractual termination, ascertainment of price appraisal principles, for reading off the measuring equipment or for interruption of the supply. The customer shall ensure that the measuring equipment is accessible on the maintenance date.
10. Change of supplier
10.1 In case of termination by the customer, Q CELLS shall submit declarations necessary for a future supplier change. Q CELLS cannot charge the customer a separate charge in case of a supplier change. The customer shall receive a final bill in relation to the time of the end of the supply by Q CELLS.
11. Termination of supply / Right to termination without notice
11.1 In case of interruptions or irregularities in the supply, insofar as this involves the consequences of a fault in the operation of the local distribution network, Q CELLS shall be exonerated from its performance duty. This does not apply insofar as the interruption is due to unjustified measures by Q CELLS or the interruption or irregularities are the fault of Q CELLS.
11.2 Furthermore, there is no supply obligation insofar as and to the extent that Q CELLS is impeded in the procurement or contractual supply of electricity on account of force majeure or other circumstances, which are not the fault of Q CELLS or whose rectification by Q CELLS is not possible or is not deemed to be economically viable. The customer cannot claim any compensation for damages in these cases. Q CELLS shall ensure in these cases using all reasonable means within the scope of what is feasible technically and economically that Q CELLS can resume its contractual obligations as soon as possible.
11.3 A potential obligation on the part of the customer for payment of the basic price according to Section 4.2 and 4.3 remains unaffected in case of an exemption of Q CELLS from the supply obligation according to Sections 11.1 and 11.2.
11.4 The right to termination without notice for an important reason remains unaffected. An important reason is present in particular of the customer is in arrears by €100.00 with the payment of two successive instalment payments or with a minimum amount – taking into consideration reminder and debt collection costs – and a termination without notice has been threatened two weeks beforehand. The termination shall be waived in this case if the consequences of the termination are not proportional to severity of the payment delay or the customer discloses that there is sufficient prospect that they will fully meet their obligations.
12. Interruption in supply by the network operator
12.1 Q CELLS is entitled to have the supply interrupted without prior threat by the network operator, if the customer culpably violates the provisions of this contract to a not insignificant extent and the interruption is necessary in order to to prevent the use of electrical work by bypassing, influence or before installation of the measuring equipment.
12.2 In case of other violations, in particular in case of non-fulfilment of a payment obligation despite reminder and simultaneous threat to stop the supply, Q CELLS is entitled to have the supply interrupted by the grid operator four weeks after the threat. This does not apply if it concerns insignificant contractual violations or the consequences of the stoppage are not proportional to severity of the violation or the customer discloses that it is looking likely that they will fulfil their obligations. An interruption is possible in particular in the case of section 11.4 sentence 2. When calculating the minimum amount, non-titled claims that have been complained about by the customer in compliance with form and period as well as definitively, arrears that are not due on account of an agreement between Q CELLS and the customer or arrears that have arisen from a disputed price increase that is not legally effective according to section 6, are not considered.
12.3 The interruption in the supply can be threatened as early as the reminder. The beginning of the interruption to the supply shall be announced to the customer three working days in advance.
12.4 Q CELLS shall immediately restore the supply in case of continuation of the contract as soon as the reasons for the interruption no longer apply and the customer has paid the costs of the interruption and restoration of the supply. The costs can be calculated on a lump sum basis for structurally comparable cases, whereby the lump sum calculation has to be easy to understand.
13.1 A liability on the part of Q CELLS on account of interruptions or irregularities in the supply with electrical energy is excluded insofar as this involves the consequences of a fault in the network operation including the grid connection, and Q CELLS is therefore exempted from the performance obligation pursuant to sections 11.1 and 11.2. Any damage compensation claims shall be enforced against the grid operator in these cases.
13.2 Q CELLS is liable without restriction for wilful intent and gross negligence.
13.3 Q CELLS is only liable for minor negligence in the event of injury to the life, limb and health of a person as well as in case of violation of essential contractual obligations. “Essential contractual obligations” of CELLS are those which result from the nature of the contract, whose fulfilment only makes the proper execution of the contract possible and on whose fulfilment the customer may therefore trust and rely.
13.4 The liability of Q CELLS is also limited in all cases of simple negligence – apart from in the event of injury to the life, limb or health or a person – to compensation of the foreseeable, typically occurring damage.
13.5 A more extensive liability is ruled out – without recourse to the legal nature of the enforced claim. Pending limitations or exclusions of liability do not however apply for liability independent of fault stipulated compulsorily as such by law (e.g. pursuant to the Product Liability Act) or the liability from a guarantee independent of fault.
14. Customer relocation, termination
14.1 If the customer moves to another location, the contract shall be transferred to the new consumption point.
14.2 The customer is obliged to inform about their new supply address immediately. If the customer does not report the relocation by four weeks before the relocation date at the latest, the costs resulting from this for the basic price and further electricity consumption shall also be at the expense of the customer after moving out. If Q CELLS receives a relocation notification from the customer and the data necessary for the electricity supply (market location and measuring location), Q CELLS shall inform the customer whether and at what terms and conditions the electricity supply contract shall be continued at the new market location of the customer. Insofar as supply is not possible at the new market location, the contract can be terminated by the customer without compliance with a period of notice.
15. Legal succession
15.1 If another company instead of Q CELLS enters into the rights and obligations resulting from this contractual relationship, it shall not require the approval of the customer necessary for this. The change to another company must be reported to the customer. The customer is entitled to terminate the contractual relationship with a two week period of notice to the end of the month following the notification. The right to assign claims pursuant to Section 398 German Civil Code as well as a statutory legal successor, in particular in case of transfers according to the Transformation Act, remain unaffected by this section. Modifications reserved.