General Terms and Conditions of delivery and payment

of the company BayWa r.e. Solar Systems, S.L.U. (hereinafter referred to as 'BayWa r.e.')

Version updated: April 2019

INDEX:

I.    SCOPE OF THE CONDITIONS
II.    INCLUSION OF CONDITIONS/REQUIREMENT OF FORM /CONFLICTING TERMS
III.    OFFER AND CONCLUSION OF CONTRACT/ORDER CONFIRMATION
IV.    OFFER PRESENTATION DOCUMENTS
V.    PRICES
VI.    PAYMENT/EXPIRATION/DEFAULT
VII.    VAT-EXEMPT DELIVERIES
VIII.    COMPENSATION/RIGHT OF RETENTION/PROHIBITION OF ASSIGNMENTS
IX.    DELIVERY TIMES
X.    TRANSFER OF RISK/ASSIGNMENT OF INSURANCE COVER
XI.    QUALITY/DIMENSIONS/MATERIAL CONDITIONS/SHIPPING ROUTES
XII.    CLAIMS FOR DEFECTS IN THE GOODS/RECTIFICATION
XIII.    GENERAL LIMITATION OF LIABILITY/PRESCRIPTION
XIV.    RETENTION OF TITLE GUARANTEE
XV.    TERMINATION
XVI.    DATA PROTECTION
XVII.    CONFIDENTIALITY
XVIII.    JURISDICTION
XIX.    DIVISIBILITY
XX.    SUBMISSION TO SPANISH LAW

I.    SCOPE OF THE CONDITIONS

1)    The present shipping and payment conditions (hereinafter the "Conditions") shall apply only to traders and commercial companies within the meaning of articles 1 and 122 of the Royal Decree of 22 August 1885 publishing the Commercial Code and to legal persons governed by public law (hereinafter the "Customers"). They shall apply to all legal acts and commercial operations, including the corresponding additional and ancillary operations which have as their object or give rise, directly or indirectly, to the sale of the products marketed by BayWa r.e.

2)    Business transactions, including additional, ancillary and performance transactions (delivery and provision of services) as well as previous offers from BayWa r.e. shall be based exclusively on these Conditions. The Conditions also apply in the case of obligations arising directly or indirectly from business transactions between BayWa r.e. and the Customers, as well as - in the version in force at the given time - in the case of future business relations in which BayWa r.e. refers to these Conditions.

3)    To the extent that BayWa r.e., as a trading company, encounters commercial or legal limitations at the place of delivery due to the conditions of previous suppliers, including those of components, parts and software, these limitations also apply to the Customer (buyer) of BayWa r.e., who will be duly informed about the existence and content of the limitation on the occasion of the trading transaction.

II.    INCLUSION OF CONDITIONS/REQUIREMENT OF FORM /CONFLICTING TERMS

1)    The present Conditions shall form part of the business transaction with the Customer whenever BayWa r.e. mentions or refers to them in offers, acceptances (in the legal sense), order confirmations and other equivalent documents, or otherwise in the online shop, and as appropriate also in framework agreements or contracts concluded.

2)    Furthermore, the Conditions become part of the contract when BayWa r.e.'s offer is accepted without objections, a declaration of acceptance is received from BayWa r.e. to a previous own offer or an order from the Customer and in this declaration of acceptance reference is made to the Conditions or with the receipt without objection of an order confirmation.
 
3)    Any similar statements, messages, notice, confirmation, approval and similar communication referring to the present Conditions shall only be legally effective when they are issued in writing or in an equivalent form, unless otherwise provided for in these Terms and Conditions. Communications by fax, email or other electronic means shall be deemed equivalent to written form. If this requirement of form is not respected, the communications made shall have no legal effect whatsoever.
The same applies if modifications or additions are made to these Conditions (article III, para. 5).
The Conditions shall also be included in the case of commercial transactions carried out by electronic means.

4)    The Customer may consult the Conditions at any time by accessing the BayWa r.e. portal or website. If, exceptionally, the commercial transaction is carried out on the basis of a verbal agreement, the Conditions shall also apply.

5)    BayWa r.e. hereby objects to any terms and conditions of business or purchase of the Customer to which the Customer refers in the acceptance of the business relationship or during the course of the same, including referencing in orders, written orders, statements of acceptance and the like, and which do not coincide with the BayWa r.e. Terms and Conditions. BayWa r.e.'s opposition to the Customer's conditions shall also apply in cases where BayWa r.e.’s Conditions do not include any provision on the specific subject matter. This opposition will also apply to future commercial transactions.

III.    OFFER AND CONCLUSION OF CONTRACT/ORDER CONFIRMATION

1)    BayWa r.e.’s offers shall not be binding insofar as their non-binding character is expressly indicated. BayWa r.e. is otherwise bound by its offers, including the conditions and prices, during a period of 30 days.

2)    In the event that a Customer's order can be considered an offer within the meaning of article 1.262 of the Royal Decree of 24 July 1889 publishing the Civil Code, BayWa r.e. will have 30 days to accept it, provided that no longer acceptance period is specified.
 
3)    With regard to the content of the order and the due date of payment to be made by the Customer (purchase price), the written order confirmation of BayWa r.e. will be taken as a reference. If the transaction is carried out on the basis of an offer from BayWa r.e., in the absence of an additional order confirmation, the same offer will be taken as a reference for the content of the order. In the event of full or partial cancellation by the Customer of an order accepted by BayWa r.e., the Customer shall pay BayWa r.e. 10% of the value of the cancelled goods as cancellation charges unless BayWa r.e. has previously accepted such cancellation in writing.

4)    Any deviation from the present Conditions in the order confirmation or in the BayWa r.e. offer shall render the deviating specific provisions of the Conditions null and void (principle of priority of specific provisions in order confirmations and offers over the Conditions). Any previous communication will be completely replaced by the order confirmation or offer by BayWa r.e.

5)    Business transactions shall be based exclusively on the relevant commercial legal acts (offer, acceptance, order confirmation, commercial confirmation letters where applicable). Any accessory agreement or modification of documents relevant to the conclusion of the contract, including the present Conditions, shall require express confirmation by BayWa r.e. to be effective.

6)    Purchase contracts shall only be concluded and planning services shall only be the subject of the contract if expressly agreed.

7)    The conclusion of contracts is subject to the suspensive condition that there are no impediments in national or international regulations, especially conditions on export control, such as embargoes or other sanctions. The performance of deliveries and the provision of services for the performance of contracts concluded shall be subject to the absence of such impediments.

IV.    OFFER PRESENTATION DOCUMENTS

1)    BayWa r.e. reserves all rights of ownership and authorship over its designs, illustrations, calculations and software. This reservation also applies to the corresponding communications by electronic means, and third parties may not be granted access to these documents.
 
2)    BayWa r.e. undertakes to the Customers to maintain the confidentiality of the plans and documents that they identify as confidential, regardless of the form of communication, as well as to prevent access by third parties to the same unless authorised by the corresponding Customer.

3)    The above-mentioned obligation of confidentiality shall not apply in relation to communications that are considered to be commonly known in their respective sector.

V.    PRICES

1)    Unless otherwise stated in the BayWa r.e. offer or order confirmation, the prices "ex works" or BayWa r.e. warehouse (Incoterms 2010 EXW) or its relevant external logistics partner will be applied, excluding packaging and transport costs and any insurance premiums (transport insurance), which shall be calculated separately. BayWa r.e. shall also have the right, but not the obligation, to insure the products or goods to be shipped against transport risks, even if the Customer does not expressly order such insurance. The (proportional) insurance costs shall also be borne by the Customer.

2)    The prices of the offer extended by BayWa r.e. shall be interpreted as net prices provided that the amount of VAT is not indicated. VAT shall be indicated on the invoice or equivalent commercial document, taking into account the rate applicable on the date of invoice.

3)    Discounts for prompt payment will only be permitted in cases where there is express written authorisation from BayWa r.e. or where this is indicated in the relevant commercial documents.

VI.    PAYMENT/EXPIRATION/DEFAULT

1)    The payment to be made by the Customer shall be payable upon issue of the order confirmation, without the need to issue an additional invoice, even if such confirmation is not additionally identified as an invoice. The due date of the payment obligation shall be irrespective of the time of delivery, i.e. it may be earlier than the time of delivery.

2)    In the absence of an order confirmation by BayWa r.e., payment is due upon completion of the business transaction, i.e. the extension and acceptance of the offer.
 
3)    The due date of the Customer's payment obligation is not linked to any counter-delivery (delivery) of BayWa r.e.

4)    In the event that the Customer fails to fulfil its payment obligations, stops or suspends payment, requests a deferment of payment, or is seen to be in specific situations that justifiably call into question its creditworthiness, BayWa r.e. is entitled to demand payment of all amounts due. In such a case, BayWa r.e. may assert its warranty rights, and in particular its right of retention of title, to the extent agreed or determined in the present Conditions, without the buyer needing to be in default and without any obligation to terminate the contract.

5)    In the event of default, proceedings will take place in accordance with the legal provisions to the extent that the agreements reached between BayWa r.e. and the Customer or the present Conditions do not provide otherwise, with the Customer paying a default interest of 9% on the base amount owed to BayWa r.e. from the start of the delay.

6)    The place of execution of the Customer's payments is the registered office of BayWa r.e. In order to determine that the payment has taken place within the established period, the date on which BayWa r.e. receives the payment or the value date or settlement of similar means of payment will be taken into account. BayWa r.e. is not obliged to accept these similar means of payment (cheques, etc.) unless they are confirmed or guaranteed by a bank. This type of similar means of payment will be accepted subject to final collection in all cases. The definitive value date of any credit made to the current account of
BayWa r.e. shall be deemed to be final when cancellation of such subscription is not possible or is prohibited by national or international financial transaction regulations.

VII.    VAT-EXEMPT DELIVERIES

Where a supply is exempt from value added tax pursuant to Value Added Tax Act 37/1992 of 28 December 1992 and Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of supply of services, the customer shall be obliged to sign and return the acknowledgement of receipt. The customer or the third party designated by this shall have a period of 30 days to return the acknowledgement of receipt upon delivery of the goods purchased. In the event that the Customer fails to fulfil its obligation, VAT will be invoiced accordingly.
 
BayWa r.e. reserves title to the goods purchased until receipt of the acknowledgement of receipt or payment of the corresponding VAT.

VIII.    COMPENSATION/RIGHT OF RETENTION/PROHIBITION OF ASSIGNMENTS

1)    BayWa r.e. shall be entitled to offset all amounts owed by the Customer against any amounts owed to it, irrespective of its legal basis. This shall also apply where the amounts mutually due correspond to different legal ties.

2)    The Customer shall not be entitled to offset amounts owed by BayWa r.e. against any amounts owed to the company, especially in cases of default, damages and other claims for compensation, nor to exercise a right of retention on amounts owed to BayWa r.e., unless the claims for compensation are enforceable or have not been disputed by BayWa r.e.

3)    The Customer shall not be entitled to assign to third parties any credit in its favour resulting from a transaction carried out under these Conditions, unless it has the consent of BayWa r.e. to that effect.

IX.    DELIVERY TIMES

1)    The delivery period begins with the communication of the order confirmation, which may establish a period for delivery. In the absence of this document, the period begins with the acceptance of the BayWa r.e. offer or the acceptance by BayWa r.e., although under no circumstances before the presentation of the documents, authorisations or permissions to be obtained by the Customer or the receipt of the advance payment established in the present Conditions or agreed in a specific contract (advance payment).

2)    The delivery period shall be deemed to have been met when the goods to be delivered leave the BayWa r.e. head office or factory or when notification is given that they are ready for dispatch within this period. At that point, delivery shall be deemed to have been made, also for VAT purposes.

3)    The dates and deadlines specified by BayWa r.e. shall not be fixed unless expressly agreed otherwise.
 
4)    In the event of delay in delivery due to force majeure or events that substantially hinder or make it impossible for BayWa r.e. to provide the service (including any difficulty in acquiring material arising after acceptance; traffic interruptions, including those related to international trade in goods, and in particular imports; breakdowns; strikes; lockouts; other administrative resolutions beyond the control of BayWa r.e., including those affecting our suppliers), BayWa r.e. shall not be liable, even if binding deadlines and dates have been agreed. BayWa r.e. shall be entitled to postpone delivery for the duration of the hindrance plus a reasonable additional period, or to terminate all or part of the unperformed parts of the contract.

5)    If an impediment not attributable to BayWa r.e. within the meaning of paragraph 4) lasts for more than two months, the Customer shall be entitled, after establishing a reasonable extension, to terminate the non-performed parts of the contract. Any additional rights in this respect are excluded. The same shall apply if BayWa r.e. incurs delays in delivery for reasons other than those for which BayWa r.e. is responsible.

6)    BayWa r.e. is entitled to make partial deliveries at its discretion.

7)    Delivery times shall in any case be extended by a period equivalent to the period during which the Customer does not fulfil its obligations to BayWa r.e.; they may also be extended on the basis of other legal grounds or other commercial agreements.

8)    In the event that the Customer delays acceptance or violates other cooperation obligations, BayWa r.e. is entitled to claim compensation for damages suffered, including any additional costs incurred. This does not affect other legal or contractual rights.

9)    When any of the situations referred to in paragraph 7) or 8) of this article or paragraph 4) or 5) of article VI occur, the material and price risks, and in particular the risk of loss, theft or accidental deterioration of the goods, shall be transferred to the Customer.

10)    If the Customer does not accept receipt of the goods within the delivery period, BayWa r.e. shall be entitled to invoice the Customer for the storage and financing costs from the second week after the end of the delivery period. These costs are calculated on the basis of the yield of the non-accepted photovoltaic panels and amount to 0.40 EUR/kWp for each week started. The costs of storage and financing correspond to the loss of liquidity and the occupation of space by photovoltaic panels that usually result from late payment and corresponding prolonged storage.

11)    To the extent that BayWa r.e. organises the transport of products or goods, BayWa r.e. shall not be liable for the conduct of the parcel service, freight forwarder or other carriers, and in particular shall not be liable for compliance with the delivery deadline by the parcel service, freight forwarder or carrier. However, at the Customer's request and on presentation of proof of the delay, BayWa r.e. will reimburse the Customer for the supplement paid for urgent deliveries or deliveries with a fixed delivery date.

X TRANSFER OF RISK/ASSIGNMENT OF INSURANCE COVER

1)    After notification that the goods are ready for shipment, or when the shipment has been delivered to the carrier or has left the BayWa r.e. warehouse or the supplier's warehouse (in the case of direct shipments) to be shipped or transported, the material and price risks are transferred to the Customer in accordance with article IX, para. 9. This applies irrespective of whether the transport or shipment is carried out on the account of BayWa r.e. or the Customer.

2)    When notification is given that goods are ready for shipment, they must be removed immediately, otherwise BayWa r.e. is entitled, as it sees fit, to send them to the Customer at the Customer's expense and risk, or to store them and charge the Customer for storage costs.

3)    In cases where BayWa r.e. has taken out transport insurance and the Customer has fulfilled all payment obligations to BayWa r.e. in respect of the goods insured, all insurance rights shall be transferred to the Customer to the extent permitted by law and the corresponding insurance contract, unless such assignment is prohibited by the insurance contract, the conditions of the insurance company, Spanish law on insurance contracts (Law 50/1980 of 8 October on Insurance Contracts) or other legal provisions.

XI.    MATERIAL QUALITY/DIMENSIONS/CONDITIONS/SHIPPING ROUTES

1)    The quality and dimensions of the goods to be transacted shall be determined in accordance with DIN standards, data sheets, certificates and similar documents, as well as other product-specific standards and calculations, provided that the application of other standards, especially from other countries, is not agreed upon or included in BayWa r.e.'s offer or order confirmation. Where there are no DIN standards, data sheets, certificates or similar documents, the relevant Community legislation and, in the absence of such legislation, common commercial practices, shall apply.

2)    References to standards, data sheets or examination certificates of any kind and a description of the goods covered by the contract, together with the corresponding data, shall not constitute a guarantee of properties. Even if the shipment or service is intended for a particular use by the Customer and is defined in a contractual manner, this does not constitute a guarantee either as to the properties of the product.
BayWa r.e. is not obliged to provide the Customer with any guarantee for the properties of the product or any other guarantees, unless expressly stated in writing in the relevant business documents.

3)    Liability for warranties on properties or other guarantees not based on a written warranty by BayWa r.e. is excluded.

4)    BayWa r.e. may select or determine the shipping route and means of transport for the shipment of the products subject to the transaction unless otherwise stipulated.

XII.    CLAIMS FOR DEFECTS IN THE GOODS/RECTIFICATION

In the event of problems with the quantity or quality of the goods shipped, as well as in the event of defect of the guaranteed properties or error in the shipment, BayWa r.e. will bear the following obligations of rectification:

1)    The Customer shall examine the goods immediately upon receipt with the thoroughness that can be expected taking into account the circumstances and graphically document all identified defects; any defect detected in this examination shall be claimed immediately, and in the case of non-recognizable damage no later than seven days after delivery, properly complying with the requirement of form (article II of the present Conditions). The reference date shall be the date on which BayWa r.e. receives the claim. Any defect that cannot be identified within this period, even with a careful examination, must be claimed immediately after detection, immediately suspending work with the goods concerned and taking into account the applicable legal provisions. The obligation to make a claim also applies to business relations which are not based on commercial law (e.g. which must be governed by labour law or business management regulations). If the claim is not submitted in due time, the Customer will not be able to assert its right to rectification. The Customer shall bear the burden of proof in relation to the criteria giving rise to the right to rectification, in particular proof of the defect itself, early detection of the defect and timely submission of the claim for defects.

2)    In the case of correct and timely complaint of a defect in the goods, BayWa r.e. can decide at its own discretion whether to rectify the defect by repair or replacement.

3)    In the event that the Customer has to assemble or disassemble the affected goods for rectification, it must offer BayWa r.e. the option of carrying out such assembly and disassembly itself or entrusting it to a third party; otherwise, the costs paid by the Customer shall be deemed unnecessary.

4)    In the event that the rectification fails, the Customer may request, as appropriate, a reduction in price (discount) or cancellation of the contract (termination). However, in the case of minor infringements, especially in the case of minor defects, there shall be no such right of waiver. In the event of failure to rectify a material defect and the Customer decides to terminate the contract, the Customer shall not be entitled to claim damages for the defect unless BayWa r.e. has incurred wilful misconduct, fraud or gross negligence. In the event that BayWa r.e. has engaged in such conduct and the Customer claims damages from BayWa r.e. after a failed attempt to rectify defects, the Customer shall keep the goods as long as it deems reasonable. Damages shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply where BayWa r.e. has breached an essential contractual obligation by wilful misconduct, fraud or gross negligence.

5)    If the Customer does not immediately give BayWa r.e. the opportunity to establish the defect, and in particular if it does not make the goods, samples or parts which are the subject of the complaint available to BayWa r.e. on request, it will lose all warranty claims.

6)    In the event that the Customer claims a non-existent defect, BayWa r.e. shall be entitled to demand reimbursement of the internal and external costs incurred. These costs shall amount to a minimum of EUR 50.00, unless the Customer can prove a lower amount.

7)    In the case of goods sold as material with defects, the Customer shall have no right of rectification in relation to the defects indicated or those that can be expected.

8)    Without prejudice to the foregoing, the Customer shall retain any indispensable additional rights relating to product liability.

9)    BayWa r.e. must bear all costs of transport, road infrastructure, personnel, assembly and material payable in the event of non-compliance, provided that they are not attributable to the Customer's subsequent transport of the goods to a place other than the place of delivery; any expenses incurred in such circumstances shall be borne by the Customer.

XIII.    GENERAL LIMITATION OF LIABILITY/PRESCRIPTION

1)    Insofar as the present Conditions do not contain any other provision or there is no contrary binding legal provision, BayWa r.e. will only be liable for damages in the event of a breach of its contractual and non-contractual obligations if it is guilty of intent, fraud or gross negligence. The liability of BayWa r.e. employees in case of slight or gross negligence is excluded, unless an essential obligation in the legal sense is breached. The agreed disclaimer/limitation of liability shall also apply to damage caused by delays or defaults.

2)    BayWa r.e.'s liability shall not include damage not normally expected in the particular type of operation or in respect of those against which the Customer is insured or can be commonly insured, with the exception of damage caused by delays. Liability for damages in the event of defects in the goods shall remain excluded to the extent permitted by law, even in the case of gross negligence, and in any event shall be considered as mild negligence.

3)    Any right of claim against BayWa r.e. for defects in the goods shall become statute-barred within one year of dispatch, taking into account the provisions of article VIII, unless BayWa r.e. has provided for a different (higher) statute of limitations or it is obligatory or different in accordance with the applicable legal provisions.

XIV.    RETENTION OF TITLE GUARANTEE

1)    All physical goods that are shipped or delivered (products/goods) remain the property (retention of title) of BayWa r.e. until the fulfilment of all the conditions set forth herein, including conditional ones and those with a later expiration date. This also applies to the payment of special amounts. In the case of open accounts, the retention of title serves as a guarantee of the balance due.

2)    BayWa r.e. may at any time oppose the sale, connection or combination of the goods object of the retention of title if the Customer is in default with regard to its payment obligations, stops payment or becomes insolvent.

3)    In the event of a combination, transformation or connection of goods object of the retention of title with other movable property not belonging to BayWa r.e., BayWa r.e. shall hold title of the resulting property in proportion to the invoice value of the goods object of the retention of title in relation to the rest of the goods or the new property, including the costs of transformation (connection, combination). If the value of the other properties is not known, an estimate shall be made taking into account the principle of proportionality.

4)    In the event of a modification or a transformation of the goods object of the retention of title, BayWa r.e. will have manufacturer status in the sense of article 5 of Royal Legislative Decree 1/2007, of 16 November, approving the consolidated text of the General Law for the Defence of Consumers and Users and other complementary laws, without this constituting any obligation whatsoever. The property resulting from the transformation shall be considered as property object of the retention of title in the sense of the present Conditions. If the object of the contract is transformed in conjunction with other properties that do not belong to BayWa r.e., it will be co-owner of the resulting property in proportion to the value of the goods purchased (final amount invoiced, including VAT) in relation to the value of the goods remaining at the time of transformation. Otherwise, the same conditions shall apply to the property resulting from the transformation as to the goods object of the retention of title.

5)    Where the Customer is a merchant reselling transformed or non-transformed goods, it shall be entitled to resell the goods object of the retention of title as part of its normal business transactions. In such a case, it shall assign the receivable resulting from the resale to BayWa r.e. for the invoiced amount of the goods subject to the retention of title. Resale authorisation depends on the legal effectiveness of the assignment of the receivable. This also applies if the goods subject to the retention of title are used by the Customer for the execution of a construction contract or a contract for the supply of works, in particular with construction companies; in this case too, BayWa r.e. shall be assigned in advance the resulting receivable on the amount of the invoiced value of the goods object of the retention of title. Authorisation for the transformation of the goods depends on the legal effectiveness of the assignment of the receivable.

6)    The Customer shall not have the right to transfer the goods object of the retention of title as security to third parties, pledge it or barter with it. Similarly, it is not authorised to deposit receivables assigned to BayWa r.e. on account of extended retention of title for factoring in a bank, unless that bank replaces BayWa r.e. directly in connection with the Customer's payment obligation. Otherwise, the assignment or disposal of receivables assigned because of a prolonged retention of title to a factoring bank requires the written consent of BayWa r.e.

7)    If a debtor (third party) pays the Customer the receivables assigned to BayWa r.e. as a result of the extended retention of title by cheque or similar means of payment, the ownership of this means of payment shall pass to BayWa r.e. as soon as it has been received by the Customer.

8)    BayWa r.e. is entitled to charge the amount of the resale until the corresponding cancellation, which can be made verbally. The Customer shall, upon request, inform the third party debtor of the assignment of the receivable and notify of such communication, as well as send the necessary information and documents with the notification for the collection of the assigned receivables. In case of pledges or other limitations by third parties, the Customer must notify BayWa r.e. immediately.

9)    The exercise of the right of retention of title, and in particular the removal of goods which are object of a contract or the recovery of receivables from third parties, shall not constitute a waiver of the contract. Specifically, BayWa r.e. shall be entitled to recover the goods subject to the retention of title without having to withdraw from the contract, insofar as the purchaser of the goods exceeds the period of payment granted or otherwise does not pay its debts in due time, is in default or does not fulfil the obligations arising from the present Conditions.

10)    In the event that the Customer includes in a current account relationship receivables in its favour resulting from the resale of materials over which BayWa r.e. has a broader or longer retention of title, BayWa r.e. shall replace it in this current account as a creditor of the price of the goods subject to the retention of title. Once the amount has been settled, the recognised balance is transferred instead up to the amount that sets off the original receivable in the current account.

11)    The Customer shall also assign to BayWa r.e., as security for its debt, the receivables obtained from third parties by linking the object of the retention of title to a movable property, for an amount equal to the invoiced value of the goods.

12)    BayWa r.e. undertakes to release, at the Customer's request, the securities to which it is entitled, insofar as the cash value of the securities exceeds the guaranteed receivables by more than 10%; BayWa r.e. will select the securities it wishes to release.

XV.    TERMINATION

In addition to the cases referred to in article IX, paras. 4 and 5, BayWa r.e. shall be entitled to terminate the contract at any time if (i) the Customer is in default with respect to payment obligations arising from the business transaction or other transactions with BayWa r.e., (ii) the Customer has misrepresented data relating to its creditworthiness, or
(iii) in case of a judicial process against the Customer in matters of insolvency of assets. This shall not affect any other right of BayWa r.e. to receive compensation for damages incurred in any of these cases.

XVI.    DATA PROTECTION

The data controller is BayWa r.e. Solar Systems S.L.U., e-mail rgpd@baywa-re.es BayWa r.e. will process personal data for the processing of orders, as well as for own marketing purposes, in accordance with the applicable legal provisions. The processing of data will not be carried out to satisfy the interests of third parties, and there is no provision for the transfer of data to countries outside the EU. The recipients of the data are IT services, service providers and suppliers for the purposes of contract execution, as well as information agencies for solvency checks at times when BayWa r.e. has to make advance payments (payment against invoice, direct debit). Data processing shall be carried out in accordance with article 6, para. 1 of Regulation (EU) 2016/679 (GDPR). The Customer is under no obligation to provide its data, but must fulfil its contractual obligations. Detailed information on data processing, and in particular on the rights of data subjects, can be found at www.baywa-re.es/es/politica-de-privacidad/.

XVII.    CONFIDENTIALITY

The information relating to products and services, intellectual property or business disclosed to the Customer or to BayWa r.e. are for their exclusive and sole use, so both are obliged to maintain total confidentiality in relation to the data and information transmitted. The Customer may not transfer such information, neither in full nor in part, to third parties without prior written consent of BayWa r.e.

These confidentiality obligations will continue even after the termination of its relationship with BayWa r.e. The Customer shall therefore be liable for any misuse or leakage between its staff or any third party to whom it has communicated such information.

XVIII.    JURISDICTION

The parties submit to the Courts and Tribunals of Barcelona for any dispute related to a commercial transaction between BayWa r.e. and the Customer or with respect to the present Conditions, provided that the Customer is a merchant or a trading company or a legal person under public law. This shall also apply to disputes over legal obligations based on the business transaction between BayWa r.e. and the Customer. However, BayWa r.e. shall also be entitled to file a claim against the Customer in the Customer's own jurisdiction.

XIX.    DIVISIBILITY

Should any provision of the present Conditions be or become ineffective, this shall not affect the legal effectiveness of the remaining provisions. Instead of the invalid provision, the corresponding legal provisions shall apply insofar as these are not invalidated by the remaining provisions.

XX.    SUBMISSION TO SPANISH LAW

The legal relationship between BayWa r.e. and the Customer shall be governed exclusively by the laws of Spain, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.

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