General Terms and Conditions
1. General Information and Scope
1.1 These General Terms and Conditions (hereinafter “GTC”) apply to all business relationships of Kumandra Energy GmbH & Co. KG (hereinafter “Kumandra”) with contractual partners (hereinafter “Customer”) if the Customer is an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal entity under public law, or a public special fund.
1.2 These GTC apply exclusively to contracts concerning technical and commercial consulting, planning services, and the provision of engineering services by Kumandra in the fields of photovoltaics, storage technologies, charging infrastructure, electrical systems, and other renewable energy systems, as well as the associated project development measures in accordance with the Renewable Energy Act (“EEG”), the Energy Industry Act, and other energy-related regulations, including the preparation of concept papers, feasibility studies, and specifications (hereinafter “Consulting Services”).
1.3 These GTC, in their current version, also serve as a framework agreement for all future contracts concerning the provision of Consulting Services with the same Customer, without Kumandra needing to refer to them in each individual case. Amendments to these GTC will be communicated to the Customer in writing and shall be deemed approved if the Customer does not object in writing. The Customer will be informed of this consequence when the amendments are communicated. The Customer must object in writing within six weeks after notification of the changes.
1.4 These GTC apply exclusively. Divergent, conflicting, or supplementary terms and conditions of the Customer shall not become part of the contract, even if Kumandra is aware of them and does not expressly object in individual cases, unless their applicability is explicitly agreed in writing. Silence shall not be deemed consent. This also applies if Kumandra performs the Consulting Services without reservation despite knowledge of the Customer’s differing terms.
1.5 Individual agreements made in specific cases with the Customer (including ancillary agreements, additions, or amendments) shall always take precedence over these GTC. The content of such agreements shall be governed by a written contract or Kumandra’s written confirmation.
1.6 Legally relevant declarations and notifications that must be made by the Customer to Kumandra after conclusion of the contract (e.g., setting deadlines, reporting defects, declarations of withdrawal or reduction) must be in writing to be effective.
1.7 Kumandra provides Consulting Services exclusively for the Customer. Third parties shall only be included in the scope of services if expressly agreed contractually.
1.8 References to the applicability of statutory provisions are for clarification purposes only. Therefore, statutory regulations shall apply even without such clarification, unless they are directly amended or expressly excluded in these GTC.
2. Assignment, Conclusion of Contract, Fees, and Payment Terms
2.1. All offers made by Kumandra are non-binding unless explicitly marked as binding.
2.2. A contract is concluded through the Customer’s signed offer, a signed contract for engineering services (EPCM), or a written assignment in any form (e.g., by email) (hereinafter referred to as the “Assignment”). A written order confirmation serves for acknowledgment only.
2.3. The scope of the contractual Consulting Services is determined by the Customer’s Assignment, including these GTC. Kumandra does not guarantee any specific economic outcome. Oral assurances or agreements made prior to the Assignment are non-binding and are replaced by the Assignment, unless they are explicitly stated to be binding. Section 1.5 of the GTC remains unaffected.
2.4. Both the Customer and Kumandra are entitled to request changes to the agreed scope of services in writing. Upon receipt of a change request, the receiving party will review its feasibility and inform the other party of the results promptly in writing. Kumandra is entitled to invoice the Customer for any effort incurred if the change request requires extensive or time-consuming review. Any contractual adjustments required for such a review or a change to the agreed scope of services shall be set forth in a separate agreement.
2.5. Consulting Services are billed at the fixed price specified in the Assignment or on the basis of agreed time and materials, unless another invoicing or payment method is specified in the Assignment. For time-and-materials-based consulting, incurred working hours and travel time are billed at the applicable hourly rates, and consumed materials are billed at the prices valid at the time of service. Other expenses, including travel, accommodation, and overnight costs, are included in the agreed hourly rates. Travel time is considered working time. Any effort estimates provided in the Assignment for time-and-materials-based consulting are non-binding.
3. Provision of Consulting Services by Kumandra
3.1. Kumandra provides Consulting Services in accordance with the generally accepted rules of technology and applicable legal regulations in effect at the time the contract is concluded. Unless otherwise specified or agreed, this also applies to Consulting Services related to projects or objects outside the direct scope of these regulations. Unless otherwise specified or agreed, calculations, designs, dimensioning, and similar work are generally carried out using software in accordance with the functions and methods supported by the software and the underlying technical and legal regulations. Details regarding the software and its underlying methods can be requested by the Customer from Kumandra.
3.2. Kumandra is entitled to have the services required for the execution of the contract performed by third parties. Nevertheless, Kumandra remains fully and directly liable to the Customer.
3.3. Kumandra is not obliged to verify project- or object-related information, specifications, or similar data provided by the Customer for accuracy, compliance with actual on-site conditions, legal requirements, or plausibility. This also applies if Kumandra has visited the Customer’s project or related object, participated in the collection of project- or object-related data (e.g., measurements), assisted in such processes, or reviewed planning documents.
3.4. Unless explicitly agreed otherwise, Kumandra and its employees are not responsible for the Customer’s construction planning and do not act as responsible technical planners, engineers, structural engineers, or architects. Kumandra and its employees are not authorized to submit construction documents, sign approval plans, or release planning documents for approval.
4. Customer’s Cooperation Obligations
4.1. The Customer shall provide Kumandra with all information and documents necessary and required for the execution of the Assignment in full, in a timely manner, and free of charge. The Customer shall proactively inform Kumandra of any known project-specific circumstances that are relevant to the performance of the contractual services before the execution of such services.
4.2. It is solely the Customer’s responsibility to ensure and verify that the project- or object-related information, data, and documents provided to Kumandra are accurate, correspond to actual conditions, and are suitable for the Customer’s intended application.
4.3. Kumandra assumes no responsibility for whether technical documents delivered to it by the Customer or on the Customer’s behalf infringe any existing copyrights, industrial property rights, or other third-party rights. The Customer shall be solely liable for any infringement of third-party rights resulting from the execution of the Assignment. The Customer shall indemnify and hold Kumandra harmless against all claims by third parties arising from such infringements upon first request.
4.4. If Kumandra or its employees carry out work on the Customer’s premises, the Customer shall grant Kumandra’s employees or third parties commissioned by Kumandra access—free of charge—during normal business hours and in accordance with the Customer’s access rules to all premises, installations (hardware, software, networks, etc.), and other work equipment necessary for the proper provision of services by Kumandra. If required, the Customer shall also provide functional workspaces free of charge for Kumandra’s employees or for third parties commissioned by Kumandra.
5. Deadlines, Timeframes, and Default of Acceptance
5.1. Deadlines or timeframes are only binding if agreed upon in writing.
5.2. If the Customer fails to perform cooperation obligations in a timely manner, any deadlines or timeframes shall be extended by the duration of the delay caused. This does not apply if the delay is attributable to Kumandra. Delays due to force majeure or events such as strikes, lockouts, governmental orders, or other circumstances that make it temporarily or permanently impossible for Kumandra to provide the agreed services are not attributable to Kumandra, even if the deadlines or timeframes have been agreed upon as binding. This also applies if such events occur with third parties or subcontractors commissioned by Kumandra.
5.3. The statutory provisions shall apply to the Customer’s default of acceptance. If the Customer is in default of acceptance or otherwise fails to fulfill cooperation obligations toward Kumandra, Kumandra is entitled, without prejudice to any other rights, to withdraw from the contract or claim damages in accordance with statutory provisions, in particular after an unsuccessful expiry of a grace period set by Kumandra. Any further claims or rights remain unaffected.
6. Rights of Use of Work Results
6.1. For all work results of any kind produced in the course of performing the contract and the agreed scope of services (e.g., documentation, reports, planning documents, analyses, drawings, software, etc.) that have been made available to the Customer by Kumandra, Kumandra grants the Customer, to the extent necessary for the purpose of the contract, a simple, non-exclusive, non-transferable, and non-sublicensable right of use. The Customer may only use the results in their entirety, not in part, and solely for the contractually agreed purpose.
6.2. Kumandra is entitled to mention the Customer’s project as a reference without prior approval, provided that the Customer’s name and project location are not disclosed. The Customer’s name and location may only be disclosed with the Customer’s written consent. Such references may be used in marketing materials, presentations, and on Kumandra’s website.
7. Payment Terms
7.1. All fees are exclusive of the applicable statutory value-added tax (Vat).
7.2. Unless expressly agreed otherwise in the engagement, all fees are due immediately and without any deduction. The date of payment receipt by Kumandra shall be decisive. The Customer shall be in default 14 days after the due date, even if the late payment is not the Customer’s fault.
7.3. If the Customer is in default, Kumandra is entitled to charge a reasonable fee of EUR 3.00 for each reminder, unless the Customer proves that the actual costs incurred are lower. In case of overdue payments or deferrals, Kumandra is entitled to charge interest on arrears at a rate of 8 percentage points above the respective base interest rate per year, but at least 8%, as well as the flat-rate compensation under § 288 para. 5 of the German Civil Code (BGB) of EUR 40.00. Kumandra explicitly reserves the right to claim higher default damages. For merchants, the right to commercial default interest (§ 353 of the German Commercial Code – HGB) remains unaffected. If partial payment has been agreed and the Customer is in default with a partial payment, Kumandra is furthermore entitled to suspend further performance until full payment of the outstanding partial amount. Clause 8.1 remains unaffected.
7.4. In the event of default, Kumandra is entitled, without prejudice to further claims and rights, to terminate any deferral agreements extraordinarily and to declare all outstanding claims immediately due.
7.5. The Customer may only offset claims against undisputed, expressly recognized by Kumandra, or legally established counterclaims. The Customer is only entitled to assert a right of retention if the counterclaim arises from the same contractual relationship and is undisputed, recognized by Kumandra, or legally established.
7.6. If circumstances arise that indicate an impairment of the Customer’s creditworthiness or insolvency and thus jeopardize Kumandra’s payment claim, Kumandra may make further services or deliveries dependent on an advance payment or security from the Customer. If the Customer refuses to make such an advance payment or provide security, or fails to do so within a set period, Kumandra is entitled to withdraw from the contract and claim damages. In the event of a filing for insolvency or the opening of insolvency proceedings against the Customer’s assets, Kumandra also has the right to withdraw and claim damages.
8. Termination of the Contract
8.1. The contract may be terminated at any time with a notice period of 30 days to the end of the month.
8.2. Either party may terminate the contract at any time for good cause in text form. Kumandra is entitled to terminate for good cause, in particular, if:
(i) the Customer is in default with their cooperation obligations, or the execution of the services is delayed for a cumulative period of more than three months for reasons not attributable to Kumandra;
(ii) the Customer unlawfully attempts to falsify or manipulate the results of the contract, or uses the results improperly (e.g., misleadingly) themselves or through their business partners;
(iii) insolvency proceedings are opened against the Customer’s assets, or such proceedings are dismissed due to insufficient assets;
(iv) the Customer fails to pay a due invoice within a reasonable period despite two reminders.
8.3. In the event of termination for good cause by Kumandra, due to impossibility of performance arising from the Customer’s risk/responsibility, or by termination by the Customer pursuant to clause 8.1, Kumandra retains its right to remuneration for services rendered up to that point. For services not yet performed by Kumandra, the remuneration due shall be reduced by any costs saved through the alternative use of personnel, or costs that Kumandra maliciously fails to recover. Kumandra is entitled to calculate saved costs at a flat rate of 60%, unless the Customer proves higher saved costs.
9. Liability and Compensation for Damages
9.1. To the extent that Kumandra, its legal representatives, employees, or vicarious agents intentionally or with gross negligence breach a duty, regardless of its nature or legal basis, in particular arising from the underlying contractual relationship or through intentional or grossly negligent tortious acts, Kumandra shall be fully liable for any resulting damage to the customer in accordance with statutory provisions.
9.2. To the extent that Kumandra, its legal representatives, employees, or vicarious agents breach a duty through simple negligence, regardless of its nature or legal basis, in particular arising from the underlying contractual relationship or through simply negligent tortious acts, the customer’s claims for damages against Kumandra are excluded, unless a simply negligent breach of a material contractual obligation occurs. In this case, Kumandra’s liability is limited to twice the contract value. A material contractual obligation is one whose fulfillment is essential for the proper execution of the contract and on which the customer regularly relies and may rely.
9.3. In the event of liability for simple negligence, Kumandra’s obligation to compensate for property damage and resulting financial losses is limited to the coverage amounts of its respective liability insurance, even if it concerns the breach of material contractual obligations. The coverage amount per damage event is EUR 5,000,000 (five million) in total for personal injury and other damages (property and financial loss).
9.4. The above exclusions and limitations of liability do not apply in cases of culpable injury to life, body, or health, in cases of fraudulent concealment of defects, where a quality guarantee is not fulfilled, or to the extent that liability exists under the Product Liability Act. The statutory rules of burden of proof remain unaffected by the above provisions.
10. Final Provisions
10.1. The law of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
10.2. The exclusive place of jurisdiction for all disputes arising from the business relationship with the customer, including these Terms and Conditions, shall be the registered office of Kumandra in Übersee (Local Court Traunstein, Regional Court Traunstein), provided that the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a public-law special fund. The same applies if the customer does not have a general place of jurisdiction in Germany, or if the customer’s registered office, residence, or habitual abode is unknown at the time the action is filed. However, Kumandra is also entitled to bring an action at the customer’s general place of jurisdiction.The exclusive place of jurisdiction for all disputes arising from the business relationship with the customer, including these Terms and Conditions, shall be the registered office of Kumandra in Übersee (Local Court Traunstein, Regional Court Traunstein), provided that the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a public-law special fund. The same applies if the customer does not have a general place of jurisdiction in Germany, or if the customer’s registered office, residence, or habitual abode is unknown at the time the action is filed. However, Kumandra is also entitled to bring an action at the customer’s general place of jurisdiction.
10.3. Should individual provisions of this contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the contract. The wholly or partially invalid provision shall be replaced by a provision whose economic effect most closely approximates that of the invalid provision.
10.4. No oral collateral agreements exist.