Terms and Conditions (T&C)
of Dark Sky GmbH for the purchase of products or services
Last updated: July 2022
1. General, Scope
1.1 These Terms and Conditions (T&C) apply to all business relationships between Dark Sky GmbH and its Contracting Parties (“CP”), provided that Dark Sky GmbH as a contractor provides a service or delivers a product. These T&C also apply to all business relationships between Dark Sky GmbH and other contractual partners. In this respect, the following T&C apply at all times to contractual relationships with all contractual partners of Dark Sky GmbH.
1.2 These T&C apply specifically to contracts for the delivery of products and other services by Dark Sky GmbH, irrespective of whether the CP uses the product or service provided by Dark Sky GmbH itself or acts on behalf and in the name of a third party. The respectively valid version of these T&C also applies as a general agreement to all future service and other business relationships between Dark Sky GmbH and the same CP, without Dark Sky GmbH having to refer to the T&C again in each individual case. Dark Sky GmbH will publish any changes or amendments to these T&C immediately. On publication and notification of the CP, the current version of these T&C applies likewise to ongoing service relationships, insofar as these involve completed elements of new services.
1.3 These T&C apply exclusively. Divergent, conflicting or supplementary terms and conditions of the CP or of contractual partners, and in particular terms and conditions of purchase or sale of the CP, only become an integral part of the contract if and to the extent that Dark Sky GmbH has expressly consented to their validity in writing. This approval requirement applies in any case, e.g. even if Dark Sky GmbH unreservedly delivers to or purchases from the CP/contractual partner in knowledge of the terms and conditions of the CP/contractual partner.
1.4 Dark Sky GmbH reserves the unrestricted property rights and copyright to cost estimates, drawings and other documents – also in electronic form. Products for which Dark Sky GmbH holds patent or trademark rights are also subject to special patent and trademark protection rights in favour of Dark Sky GmbH, which Dark Sky GmbH will also pursue strictly in the event of infringement. Documents are only allowed to be made accessible to third parties by the CP or contractual partner with the prior written permission of Dark Sky GmbH and, if a contract with Dark Sky GmbH is not concluded, are to be returned to Dark Sky GmbH without delay at the request of the latter or all data and documents held in electronic form are to be deleted.
2. Contract Conclusion
2.1 A contract with Dark Sky GmbH is concluded when the final signature is placed on a contract or, alternatively, when Dark Sky GmbH issues a binding confirmation in written or text form (“order confirmation”). The order confirmation does not necessarily have to be identified as such, provided that it just reflects the contents of the contract from Dark Sky GmbH. If the contract or order confirmation contains obvious errors (e.g. spelling mistakes and miscalculations) or omissions, the CP is to notify Dark Sky GmbH thereof so that they can be corrected or completed. The CP or contractual partner of Dark Sky GmbH is obliged to check the factual contents of Dark Sky GmbH’s quotations and expressly point out any discrepancies with the order documents.
2.2 Products offers made by Dark Sky GmbH in brochures or on the Internet do not constitute a contractual offer by Dark Sky GmbH, but are merely an invitation to the CP or contractual partner to submit a purchase offer. The CP submits a binding purchase offer with their order. Order confirmations issued by Dark Sky GmbH merely serve to confirm receipt of orders placed by the CP and do not themselves constitute acceptance of the CP’s offer to conclude a contract; rather, conclusion of the contract pursuant to Section 2.1 (1) is decisive.
2.3 Dark Sky GmbH reserves the right at all times to deviate from the contractually agreed condition of the services to be rendered or products to be delivered, provided that such deviations are customary in the trade or represent a technical improvement to the service or product ordered.
2.4 If an ongoing continuing obligation exists between the CP and Dark Sky GmbH regarding services or products offered by Dark Sky GmbH, Dark Sky GmbH is entitled at any time and at their own expense to make a technical improvement to the service or product ordered from them. Following prior notification, the CP is obliged to provide Dark Sky GmbH with direct access to their facilities for the purpose of making the technical improvement.
3. Prices, terms of payment
3.1 The prices quoted by Dark Sky GmbH in quotations, contracts, price lists or order confirmations are always quoted ex shipping point at the registered office of Dark Sky GmbH plus the respective statutory value added tax. If the CP does not pick up the goods free of shipping costs at Dark Sky GmbH, Dark Sky GmbH will ship the goods to the delivery address specified by the CP, in which case costs for packaging, shipping and insurance will be charged for separately. These additional costs for packaging and insurance as well as the statutory value added tax applicable are to be paid separately by the CP.
3.2 The CP is obliged to pay the signal fee for ongoing Dark Sky services in advance for a service period of 12 months in each case. Notwithstanding the foregoing, the initial service period can be less than 12 months if Dark Sky expressly confirms this as otherwise. A pro-rata invoice will be issued for this first service period. The service period begins on 01/04 of each year and ends on 31/03 of the following year. Notwithstanding the above, the first service period begins when Dark Sky provides the signal for the first time and ends on the 31/03 of the following year. Invoicing for a service period takes place on the first working day of the service period. Notwithstanding the above, invoicing for the first service period can take place at the same time as invoicing for the second service period.
3.3 If Dark Sky GmbH is required to render the contractual service or deliver a product to a location specified by the CP, the CP will bear all ancillary costs required for rendering the service, in addition to the agreed fee, in particular travel costs, costs for transporting the tools and equipment required and other costs indicated in the Dark Sky GmbH price lists.
3.5 Invoices issued by Dark Sky GmbH are payable without deduction within 14 days of the invoice date unless otherwise stipulated in the contract. If the CP fails to meet the payment deadline, Dark Sky GmbH is entitled – without issuing further reminders – to demand interest on arrears from the due date at the statutory rate pursuant to Sec. 288 (2) German Civil Code (BGB) of 9 percentage points per annum above the respective base rate set by the European Central Bank pursuant to Sec. 247 German Civil Code (BGB). Dark Sky GmbH reserves the right to assert claims for further damage caused by the delay.
3.6 The CP can only offset claims asserted by Dark Sky GmbH against claims that Dark Sky GmbH has conceded as valid or that have been legally established in favour of the CP. The assignment of claims by Dark Sky GmbH to third parties is always permitted. Sec. 354a German Commercial Code (HGB) remains unaffected.
3.7 If the solvency of the CP deteriorates in the period between confirmation of the order and delivery or provision of the services by Dark Sky GmbH, Dark Sky GmbH is entitled to deliver the products or provide the service only against suitable advance payment or provision a security deposit by the CP. In principle, said advance payment or security deposit can correspond to the agreed price of the delivery to be made or service to be provided by Dark Sky GmbH. If the CP refuses to make an advance payment or provide a security deposit, Dark Sky GmbH is entitled to withhold any outstanding services or product deliveries to the CP or to withdraw from the contract in its entirety. In addition, Dark Sky GmbH is entitled to terminate the contract without notice in accordance with § 648a German Civil Code (BGB) in the event of the provision of deliverables in accordance with Sec. 631 German Civil Code (BGB) et seq.
3.8 Dark Sky GmbH is entitled to charge the CP for reasonable price increases resulting from changes in wage and material costs for contractual services or product deliveries that take place 4 months or more after the order confirmation. The CP’s right to withdraw from or terminate the contract in the event of reasonable price changes in line with the foregoing sentence is excluded.
3.9 With long-term, continuing obligations, the following price escalation clause applies unless otherwise stipulated in the contract:
During the first year of the contract following handover, the contractually agreed price remain in effect. The price is adjusted for the first time at the end of the first contract year and thereafter annually at the end of each year in line with the change in the consumer price index for Germany as established and published by the Federal Statistical Office. The adjustment is made in proportion to the change in the cost of living index (base year 2015 = 100). The CP and Dark Sky GmbH accept any change under this provision as binding for the price. If the index referred to is no longer published by the Federal Statistical Office during the term of the contract, it will be replaced by the corresponding index published by the Federal Statistical Office or, if applicable, its successor organisation. If several successor indices are available for choice, the one that comes as close as possible to the consumer price index in terms of its calculation requirements (in particular the basket of goods) is to be chosen. The same applies if an index limited to the Federal Republic of Germany is no longer calculated or published. The price change is retroactive to 01/01 of each year. The price change is also to be made on 31/12 of each year in accordance with the relevant index.
4. Delivery and service, retention of title and transfer of risk
The risk for the delivery of products from Dark Sky GmbH passes to the CP as soon as Dark Sky GmbH has made the delivery item available for dispatch. Incoterms 2020 EXW Ex Works also apply.
4.2 For services associated with the installation or assembly of Dark Sky GmbH products, risk is transferred to the CP as soon as Dark Sky GmbH has successfully completed and documented the trial operation.
4.3 Dark Sky GmbH generally discharges its contractual obligations contained in the scope of services for the manufacture and delivery of products or the rendering of services within a period of 6 months from the date the contract is concluded, unless other performance deadlines are agreed in the contract. This performance deadline will be extended if the CP fails to fulfil its obligations to cooperate in a timely manner in accordance with Sec. 8 below. This applies in particular if the CP fails to provide Dark Sky GmbH with the appropriate information about its product specifications and the product environment or the CP fails to provide access to their documents or wind turbines. The performance deadline will also be extended if delays are caused by official procedures, for instance, when type approval tests are required. Extensions to the performance deadlines in the aforementioned cases result from the length of the delays at the CP or at the authorities. Dark Sky GmbH only enters into default once the agreed performance deadline has expired, provided that the CP has granted Dark Sky GmbH a reasonable period of grace of at least another month.
4.4 If the production of a product or if a service rendered by Dark Sky GmbH is delayed without Dark Sky GmbH being at fault, the delivery deadline will be extended automatically. This applies in particular to delays caused by events within the sphere of the CP. In addition, said extension to the deadline apply to all cases of force majeure as set out in Sec. 4.5 below.
4.5 Force majeure includes all unforeseen events that Dark Sky GmbH and its vicarious agents cannot avert, in particular natural disasters, riots, strikes, work stoppages, government decrees, acts of terrorism or pandemics such as the coronavirus pandemic (COVID-19). Dark Sky GmbH is released from their obligation to deliver/perform for the duration and scope of the force majeure events and their aftermath. Dark Sky GmbH and the CP will notify one another immediately in text form on becoming aware of the occurrence and cessation of the force majeure events. Notwithstanding the continuation of force majeure events, Dark Sky GmbH will use reasonable means to ensure that they meet to the greatest extent possible their obligations under the contract towards the CP. Any damages incurred by Dark Sky GmbH or the CP during the period of force majeure events will be borne by each Party.
4.6 Information about specific properties or a contractual condition of products or services from Dark Sky GmbH are only deemed to be a contractual condition or warranted property if Dark Sky GmbH has expressly referred to them in the order confirmation. In particular, a recognisably strong interest on the part of the CP in the existence of certain properties of the product does not lead to the assumption that an agreement concerning quality exists or that Dark Sky GmbH provides a contractual assurance for properties.
4.7 Products from Dark Sky GmbH remain the property of Dark Sky GmbH as goods subject to retention of title until the CP has fulfilled all payment obligations towards Dark Sky GmbH, in particular all payment claims arising from the business relationship as a whole between Dark Sky GmbH and the CP. In the contract, Dark Sky GmbH will separately indicate if products, and in particular hardware used, are not to become the property of the CP, but are only temporarily made available to the CP by Dark Sky GmbH for the provision of services. No retention of title applies to these products and the CP is not entitled to transfer these products to third parties.
4.8 While retention of title exists, the CP is prohibited from pledging or assigning the Dark Sky GmbH product as security. However, the CP is revocably entitled at any time to process in the ordinary course of business the delivered items or to combine them with other items. The processing or combination of Dark Sky GmbH products is effected on behalf of Dark Sky GmbH, whereby Dark Sky GmbH acquires pro-rata ownership of the items created by said processing or combination. If processing or combining the products results in Dark Sky GmbH losing ownership of the products, the CP transfers co-ownership in the new item created by processing or combination to Dark Sky GmbH here and now in accordance with the proportionate value of the items subject to retention of title.
4.9 However, the CP is entitled at any time, but revocably, to sell the products from Dark Sky GmbH that are intended for transfer of title to them in the ordinary course of business. The CP assigns their claims from the resale to Dark Sky GmbH on conclusion/issue of the contract/order confirmation. If Dark Sky GmbH or third parties own the product, the CP assigns the claims arising from the sale to Dark Sky GmbH in the proportion that corresponds to the CP’s co-ownership share. Dark Sky GmbH already accepts said assignment conditionally on conclusion/issue of the contract/order confirmation.
4.10 The CP is authorised and obliged to collect claims against third parties assigned to Dark Sky GmbH as long as Dark Sky GmbH does not expressly revoke this authorisation. The CP is obliged to carefully store Dark Sky GmbH items subject to retention of title and to insure them adequately against fire and theft at their own expense.
4.11 The CP is obliged to notify Dark Sky GmbH immediately in the event of seizures, confiscations or other orders or interventions by third parties. The CP is obliged to prohibit Dark Sky GmbH from allowing third parties access to the items subject to retention of title. The same applies to any damage to or destruction of Dark Sky GmbH items subject to retention of title.
4.12 In the event of breaches of obligation by the CP, and in particular in the event of payment default, Dark Sky GmbH is entitled to withdraw from the contract, terminate the contract and/or demand the surrender of the items subject to retention of title delivered by Dark Sky GmbH following fruitless expiry of a reasonable (subsequent) deadline set for the CP. Statutory provisions regarding the dispensability of deadline setting also apply expressly to all business relationships between the CP and Dark Sky GmbH. The CP is obliged to immediately surrender Dark Sky GmbH products as soon as the contract is terminated by way of withdrawal or cancellation.
5.1 If the service by Dark Sky GmbH only consists of delivering products, the CP will immediately inspect the product for defects/discrepancies on arrival at the destination location and notify Dark Sky GmbH immediately in writing or in text form, stating specific defects. The liability of Dark Sky GmbH for defects is excluded if the CP fails to give immediate and specific notice of defects. The product is deemed to be free of defects and conform to the contract if the CP does not notify Dark Sky GmbH of a defect in writing or text form within 7 working days of receipt of the delivery. The CP can only assert claims against Dark Sky GmbH for hidden defects that were not detectable on immediate inspection by the CP if Dark Sky GmbH receives notification of the defect in writing or in text form no later than 12 months after the product was dispatched.
5.2 If the CP is in default with accepting delivery of a product or service provided by Dark Sky GmbH, Dark Sky GmbH can withdraw from or terminate the contract and/or claim damages for non-performance after setting a reasonable period of grace.
5.3 If the order placed with Dark Sky GmbH also includes installation services by Dark Sky GmbH, the CP is obliged to accept the installation service as soon as Dark Sky GmbH has notified the CP of its completion in text form (email) and Dark Sky GmbH has tested and documented the contractual service. Dark Sky GmbH is obliged to submit the documentation of the trial operation to the CP on request. Dark Sky GmbH is obliged to remedy defects if the installation proves not to be in conformance with the contract. This does not apply if the defects are insignificant and do not impair the value of the delivery/service or its fitness for use. The CP cannot refuse to accept the contractual service on account of such immaterial defects.
5.4 If Dark Sky GmbH so requests, the CP will accept self-contained parts of the services/deliveries. The same applies to parts of the services/deliveries if the continued execution means that it is no longer possible to inspect and verify the partial service/delivery. Formal acceptance is obligatory if Dark Sky GmbH has confirmed such formal acceptance in the order confirmation.
5.5 If Dark Sky GmbH demands acceptance of the contractually agreed services following their completion, the CP is obliged to carry this out within 5 working days. If the CP fails to perform said acceptance in due time, it will be deemed to have been performed without reservation. Acceptance by the CP is also deemed effected when the CP has been put the delivery into use, if applicable following completion of a trial operation agreed upon and recorded by Dark Sky GmbH in the order confirmation.
5.6 Claims for defects against Dark Sky GmbH by the CP for all identifiable defects lapse on acceptance by the CP, unless the CP has reserved the right to assert a claim for a specific defect at the time of acceptance.
6.1 Dark Sky GmbH is liable without limitation in accordance with the legal provisions for damages arising from culpable loss of life, limb or health as well as for damages based on an intentional or demonstrably grossly negligent breach of obligation by Dark Sky GmbH, their legal representatives, employees and their other vicarious agents.
6.2 Except in the cases set out in Sec. 6.1 above, Dark Sky GmbH is only liable in the case of simple negligence for those damages arising from the not insignificant breach of a material contractual obligation, whereby liability is limited to the amount of the reasonably foreseeable damage typical for the contract. Material contractual obligations are those which are essential for the proper performance of the contract and which the CP regularly relies on and can reasonably rely on being complied with. The reasonably foreseeable damage typical for the contract to be compensated by Dark Sky GmbH In the case of a continuing obligation thereafter amounts to no more than 2 times the sum of the annual fee provided for in the contract.
6.3 Claims for compensation by the CP against Dark Sky GmbH are excluded except in the cases of Sec. 6.1 and 6.2 above. This also applies in particular to the liability for indirect and consequential damages on the part of the CP or, in the event of a fair attribution of third-party damage recovery claim for damages by third parties (such as loss of profit, discontinuation or reductions of Renewable Energy Sources Act (EEG) payments/market premiums, loss of production, financing costs and claims for compensation by third parties).
6.4 Liability for risks arising from the services rendered by third parties who are not legal representatives or vicarious agents of Dark Sky GmbH and whose cooperation is required for rendering the contractually owed service or for the contractual functioning of the object of the contract is excluded between the CP and Dark Sky GmbH insofar as the CP is not entitled to make a direct claim against Dark Sky GmbH taking into account Sec 6 here.
6.5 The limitations of liability according to this Sec. 6 here do not apply to claims made by the CP owing to a defect, insofar as Dark Sky GmbH had fraudulently concealed said defect or guaranteed its absence. Likewise, limitations of liability are excluded insofar as the CP is entitled to make claims for damages against Dark Sky GmbH under the Product Liability Act or other mandatory statutory provisions.
6.6 The statutory time limits apply to claims for damages under this Sec. 6 here.
7. Term of contract, CP’s right to terminate
7.1 The contract comes into force on conclusion of the contract and is valid until the agreed end of the contract. The installation and commissioning dates will be set by Dark Sky GmbH together with the CP in binding text form following conclusion of the contract/order confirmation. The corresponding order confirmation issued by Dark Sky GmbH is decisive.
7.2 If Dark Sky GmbH fails to fulfil essential contractual obligations arising from a continuing obligation in spite of two written grace periods set by the CP with a minimum period each of 14 days after receipt, the CP is entitled to terminate the contract without notice. In the event that the CP exercises this right to terminate, Dark Sky GmbH only has an obligation towards the CP to fix additional expenses that the CP can prove in detail and which correspond to no more that the price of the product delivered or the value of the fee payable by the CP to Dark Sky GmbH in a single calendar year.
7.3 Termination of parts of the contract by the CP is excluded.
7.4 Furthermore, Dark Sky GmbH and the CP are entitled to terminate the contract without notice for good cause at any time. Good cause is deemed to exist in particular if a party repeatedly breaches a material contractual obligation or refuses to fulfil a contractual obligation despite a period of grace being set in relation. Likewise, good cause is deemed to exist if the CP is in default of payment, an application for opening insolvency proceedings against the CP’s assets has already been filed or insolvency proceedings have been opened or rejected due to lack of assets.
8. Obligations to cooperate of the CP
8.1 The CP will ensure in good time and at their own expense that the obvious or contractually owed trades relating to third-party ancillary services required for the services rendered by Dark Sky GmbH have been performed, that power and other ancillary services have been provided and that theft-proof premises/spaces are available for the construction site equipment and construction site storage facilities of Dark Sky GmbH. The CP is to inform the project manager responsible at Dark Sky GmbH of any existing separate safety regulations or other special features. This notification is to be sent immediately by email after the CP has been informed.
8.2 Prior to Dark Sky GmbH commencing the contractual services, the CP is to ensure the provision of the ancillary services (e.g. full functioning of the passenger lift, supply of cranes) and items at the service location as required for Dark Sky GmbH to commence their work and complete all preparatory work prior to commencement of their work. Access roads and the service location itself must be cleared, levelled and surfaced for use by Dark Sky GmbH vehicles (usually Sprinter class).
8.3 Dark Sky GmbH can demand appropriate compensation if the CP enters into default by failing to comply with the obligations to cooperate under Sec. 8 here or under individual agreements. In addition, any delays in the provision of Dark Sky GmbH services/deliveries resulting from a breach of the CP’s duty to cooperate are to be charged solely to the CP. The CP will bear the reasonable costs in this respect, in particular for additional waiting times, additional travel/accommodation needed for employees and other vicarious agents of Dark Sky GmbH or third parties.
9. Claim for lump-sum compensation by Dark Sky GmbH
9.1 If the CP fails to accept deliveries or services rendered by Dark Sky GmbH in due time and also refuses a second delivery/service date or fails to confirm a second alternative date, Dark Sky GmbH is entitled to withdraw from the contract without setting a further deadline or to terminate continuing obligations without observing a deadline. The CP then has to reimburse Dark Sky GmbH a lump sum of 20% of the outstanding net contract price as liquidated damages; the CL has to pay in full the net contract price agreed at the time of contract termination or withdrawal in accordance with this Sec. 9.1 for services and deliveries rendered by Dark Sky GmbH. The CP is entitled to prove that Dark Sky GmbH has suffered less damage than the aforementioned lump sum of 20%. Conversely, Dark Sky GmbH is entitled to demand higher damages than the aforementioned 20% on presentation of proof.
9.2 If the CP terminates or withdraws from the contract without being entitled to do so under the contract or by law, they will also reimburse Dark Sky GmbH 20% of the outstanding net contract price as liquidated damages; the CL has to pay in full the net contract price agreed at the time of contract termination or withdrawal in accordance with Sec. 9.2 here for services and deliveries rendered by Dark Sky GmbH. The CP is entitled to prove that Dark Sky GmbH has suffered less damage than the aforementioned 20%. Conversely, Dark Sky GmbH is entitled to demand higher damages than the aforementioned 20% on presentation of proof.
10. Non-disclosure, confidentiality, privacy, protection against competition
10.1 The Parties agree to treat as confidential the contents of a contract and any information received from the other Party under the obligations of a contract. The confidentiality of information results either from it being marked accordingly by one of the Parties or from it being clearly recognisable as a trade or business secret. The disclosure of the information contained in a contract to third parties is only permissible with the written permission of the other Party, unless there is a legal or equivalent obligation to disclose on the part of one or both Parties. If there is a legal, official or contractual obligation to disclose confidential information to third parties who are not subject to professional confidentiality, the other Party is to be informed of any such disclosure in text form without delay. The Parties further undertake to disclose confidential information received to their employees, vicarious agents or third parties only to the extent necessary for the assessment, preparation and execution of the contract. The parties are obliged to bind their employees and vicarious agents to non-disclosure accordingly.
10.2 Insofar as Dark Sky GmbH receives personal data from the CP or their employees within the scope of a contract, Dark Sky GmbH agrees to observe the provisions of data protection law at all times, in particular those pursuant to the German Federal Data Protection Act (“BDSG”) and the European General Data Protection Regulation (“GDPR”). The collection, storage and use of personal data relating to the CP and their employees Dark Sky GmbH and their suppliers takes place solely for the purpose of processing and fulfilling contracts concluded with the CP. Dark Sky GmbH will not disclose personal data to third parties other than suppliers unless required to do so by law or official order. Once the entire business relationship between the CP and Dark Sky GmbH has ended, the latter is obliged to delete any data stored in writing or electronically, insofar as this is technically feasible and can be undertaken with reasonable effort. This obligation does not exist if Dark Sky GmbH is also required to retain this data beyond the end of the business relationship due to official or statutory regulations.
10.3 As the data subject of the personal data stored by Dark Sky GmbH, the CP has a right to information pursuant to Art. 15 GDPR, a right to rectification and deletion under the conditions of Art. 16, 17 GDPR, a right to restrict processing pursuant to Art. 18 GDPR, a right to object under the conditions of Art. 21 GDPR and a right to data portability pursuant to Art. 20 GDPR. Dark Sky GmbH has a dedicated data protection officer who is available at the following email address: email@example.com.
10.5 The CP or contractual partner as well as their affiliated companies as defined in Sec. 15 et seq. German Stock Corporation Act (AktG) are strictly prohibited from developing products during the business relationship with Dark Sky GmbH that are similar in form, content, function or view to the Dark Sky GmbH product or can replace it.
11. Liability for defects and warranty
11.1 Dark Sky GmbH assigns all claims for defects and warranty claims arising from contracts with suppliers of their products or services to the CP subject to the condition precedent of full payment of the contractual fee. The CP accepts this assignment with the conclusion of the contract. The defect and warranty claims assigned replace respective corresponding defect and warranty claims by Dark Sky GmbH for these products after the assignment becomes effective. If shorter periods for defects are agreed in the contracts with Dark Sky GmbH suppliers than in the contractual relationship between Dark Sky GmbH and the CP, these shorter periods will apply. The CP expressly permits Dark Sky GmbH to assert claims subject to a condition precedent on their behalf against suppliers during the term of the contract.
11.2 If a defect in the delivery or service exists for which Dark Sky GmbH is responsible, Dark Sky GmbH is entitled to choose between elimination of the defect or replacement delivery. The choice between eliminating the defect and replacement delivery as well as the type of elimination by Dark Sky GmbH will be made by Dark Sky GmbH at their reasonable discretion and taking into account the interests of both Parties under the Contract. Dark Sky GmbH covers all costs of eliminating the defect or delivering a replacement, but not the costs incurred by the CP in the course of eliminating the defect or delivering a replacement. Claims by the CP for consequential damages caused by a defect are excluded, provided that Dark Sky GmbH duly and successfully eliminates the defect or makes a replacement delivery.
11.3 If Dark Sky GmbH refuses to eliminate the defect or make a replacement delivery or if this is delayed beyond a reasonable time period for reasons for which Dark Sky GmbH is solely responsible, or if eliminating the defect or making a replacement delivery fails twice, the CP is entitled to withdraw from the Contract or to demand a corresponding reduction in the Contract price. Further claims by the CP are excluded.
11.4 The warranty period for repairs and replacement deliveries is 12 months from the beginning of the warranty period. This begins with completion of the services or transfer of risk in the case of product deliveries. Extensions or curtailments of this warranty period require separate express agreement and specification in the order confirmation issued by Dark Sky GmbH.
12. Legal Succession
The Parties have the right to transfer the rights and obligations under a contract to third parties. Transfer always requires the written approval of the other Party. The other Party can only refuse to grant approval if the legal successor fails to guarantee the fulfilment of all the contractual obligations of the legal predecessor or if other serious interests of the other Party are prejudiced by the legal succession. Corresponding approval for transferring rights and obligations of a Party is not required if it involves transfer of the Contract to a tied company belonging to a Party as defined in Sec. 15 et seq. German Stock Corporation Act (AktG).
13. Misc. Provisions
13.1 Amendments and additions to this Contract require the written form to be effective. This also applies to the amendment or cancellation of this written form clause. Verbal ancillary agreements do not exist.
13.2 Legally relevant declarations and notifications issued by one Party to the other Party following the order confirmation or other declarations only need to be made in text form (email) to be effective. This does not apply to declarations relating to the withdrawal from or termination of a contract. These must be made in writing to be effective.
13.3 All contracts concluded between the CP or a contractual partner on the one hand and Dark Sky GmbH on the other are governed exclusively by German law under exclusion of international law, and in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
13.4 If the CP is a merchant, legal entity under public law or special fund under public law in terms of the German Civil Code (BGB), the exclusive place of jurisdiction for all disputes arising from the contractual relationship is the registered office of Dark Sky GmbH. However, Dark Sky GmbH is also entitled to bring an action at the place of fulfilment of a contractually agreed delivery obligation.
13.5 Any correspondence relating to the Contract is to be conducted by the CP/contractual partner quoting the purchase order or order number of Dark Sky GmbH.
13.6 If copies/translations of these T&C, the Contract or other declarations made by the Parties are made in languages other than German, only the German version applies in the event of any discrepancies. Likewise, only the German version is authoritative for the interpretation of each contract concluded with Dark Sky GmbH.
13.7 If the technical, economic or legal circumstances underlying a contract concluded with Dark Sky GmbH were to change significantly and not merely temporarily, so that the performance of the Contract under the previous conditions would mean undue hardship for one of the Parties, the Parties undertake to effect an adjustment to the Contract in the sense of an economically and legally equitable reconciliation of interests.
14. Severability Clause
14.1 If individual provisions of the Contract or these T&C are or become void and/or legally ineffective, it does not affect the validity of the remaining provisions. Rather, the Parties undertake to replace provisions which have become invalid with provisions that are analogous from an economic, technical and legal perspective. The same applies in the event of an unplanned gap in the provisions.
Neubrandenburg, Germany, July 2022
Dark Sky GmbH
Thomas Herrholz, Managing Director
Neubrandenburg Commercial Register: HRB 20754