General Terms and Conditions of Sale and Delivery of ERHARDT Markisenbau GmbH
(Effective: April 2022)
§ 1 Scope of application
(1) These General Terms and Conditions of Sale and Delivery of ERHARDT Markisenbau GmbH (hereinafter referred to as “ERHARDT”) shall apply to all contracts as well as to obligations arising from the commencement of contract negotiations, the initiation of a contract or similar pre- or post-contractual business contacts with ERHARDT, which relate to the sale and delivery of goods or other services (esp. work tasks). They shall only apply to customers who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law, unless these General Terms and Conditions of Sale and Delivery expressly provide otherwise. They shall apply exclusively; any terms and conditions of the customer conflicting with, deviating from or supplementing these Terms and Conditions of Sale and Delivery shall not be recognised unless ERHARDT expressly agrees to their application in text form. These Terms and Conditions of Sale and Delivery shall also apply exclusively if ERHARDT, being aware of the customer’s terms and conditions, performs a delivery to the customer without reservation and does not object to the customer’s terms and conditions.
(2) The legal relationship between ERHARDT and the customer shall be governed solely by the delivery contract concluded in text form, including these General Terms and Conditions of Sale and Delivery. Additions or amendments to the contract or these General Terms and Conditions of Sale and Delivery must be made in text form to be effective. With the exception of managing directors or authorised signatories, employees of ERHARDT are not entitled to make verbal agreements deviating from this.
(3) ERHARDT’s General Terms and Conditions of Sale and Delivery shall also apply to all future business transactions with the customer, even if they are not separately included again.
§ 2 Offers, contract conclusion and offer documentation
(1) ERHARDT’s offers are subject to change without notice, unless they are expressly marked as binding or contain a specific term of acceptance. A contract with ERHARDT only comes into effect with the customer’s order and a corresponding declaration of acceptance or order confirmation by ERHARDT or by the delivery of the ordered goods. After receipt of the order confirmation by the customer, changes to the order by the customer will only be executed by ERHARDT free of charge if they are received by ERHARDT in text form (e-mail) within 3 (three) working days after receipt of the order confirmation. For change requests of the customer received by ERHARDT after the expiry of the aforementioned 3-day period, the costs incurred will be charged to the customer after their notification by ERHARDT if the customer does not object in text form (e-mail) within one day after receipt of the notification. In the event of an objection, ERHARDT shall execute the original order without taking into account the change request. In this case, the customer is obliged to accept the product produced for the customer.
(2) Orders will only be accepted and processed by ERHARDT if the order form provided for this purpose (or the online ordering system EOS) is used and all details are completed in full. Special designs that cannot be shown on the forms available at the time of ordering will be accepted individually.
(3) ERHARDT reserves all proprietary rights, copyrights and rights of use in respect of illustrations, drawings, calculations and other documents provided by ERHARDT to the customer. This shall also apply to such documents of ERHARDT which are designated as “confidential”. The customer must obtain ERHARDT’s written consent before passing them on to third parties.
§ 3 Delivery and performance
(1) The scope of services, time of performance and place of performance shall be determined in accordance with the individual contract agreed between ERHARDT and the customer.
(2) Unless otherwise agreed, the delivery of goods shall be made as a sale by delivery to a place other than the place of performance. The costs of transport/shipment to the agreed place of delivery shall be borne by the customer unless agreed otherwise.
(3) Unless the customer gives specific instructions, ERHARDT is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself. In the event of shipment, the goods will only be insured by ERHARDT against damage in transit (theft, breakage, fire, water or other damage in transit) if the customer explicitly requests this to ERHARDT in text form.
(4) Delivery is subject to ERHARDT receiving correct and punctual deliveries from its own supplier(s). If ERHARDT is not supplied or is not supplied in due time by its suppliers despite the conclusion of corresponding covering transactions without ERHARDT being responsible for this, ERHARDT shall be released from its delivery obligation vis-à-vis the customer.
(5) ERHARDT shall be entitled to make changes to the agreed performance with respect to design, material and/or execution if such changes are made due to a change in technical standards or safety regulations occurring after the conclusion of the contract or in order to improve the safety and/or functionality of the delivery item and if such changes are reasonable for the customer, taking into account the customer’s legitimate interests.
§ 4 Prices, terms of payment, limitation period
(1) Unless otherwise agreed, the net prices shown by ERHARDT at the time of the conclusion of the contract plus the applicable statutory value added tax shall apply. ERHARDT reserves the right to reasonably increase agreed prices after prior notice of at least 30 calendar days if there is a significant increase in costs (purchase prices) for raw materials, energy or other production-related costs compared to the time of the order confirmation. In this case, the customer is entitled to withdraw from the concluded contract if the list prices at the time of delivery deviate by more than 3 percentage points from the list prices at the time of conclusion of the contract.
(2) If the agreed prices are based on ERHARDT’s list prices and the delivery is to take place more than 4 months after the conclusion of the contract, ERHARDT’s list prices valid at the time of delivery shall apply in each case (less any agreed discount). In this case, the customer is entitled to withdraw from the concluded contract if the list prices at the time of delivery deviate by more than 3 percentage points from the list prices at the time of conclusion of the contract. An individually agreed fixed price is unchangeable.
(3) Unless otherwise agreed, all prices are exclusive of packaging and costs for delivery to the agreed place of delivery. Assembly costs are not included in the list prices. The customer is obliged to dispose of or recycle any transport packaging supplied at their own expense in accordance with the provisions of the German Packaging Act.
(4) Unless otherwise agreed, invoiced amounts for deliveries and/or services are due for payment without deduction within 30 days after receipt of the invoice by the customer. ERHARDT grants cash discounts only on the basis of individual contractual agreements. An invoice shall only be deemed to have been paid if ERHARDT has been credited with the full amount of the invoice to the account specified in the invoice and the payment is not revoked. Payments by cheque will not be accepted.
(5) ERHARDT shall send invoices exclusively electronically by e-mail to the e-mail address provided by the customer. The customer shall ensure that invoices transmitted electronically can be delivered to the e-mail address provided by the customer to ERHARDT. In particular, the customer will adapt or check technical equipment such as filter programs or firewalls accordingly. Invoices are deemed to have been received despite automated responses to ERHARDT (e.g. out-of-office replies). Postal invoices will only be sent on the basis of an individual written agreement between ERHARDT and the customer.
(6) If the customer is in default of payment, ERHARDT shall be entitled to charge default interest amounting to nine percentage points above the base interest rate from the time the default occurs. In addition, ERHARDT shall be entitled to payment of a lump sum for damages to the amount of 40 euros pursuant to § 288, Para. 5 of the BGB. The lump sum shall be set off against any damages owed insofar as the damage is based on the costs of legal action. The right to claim further damages remains reserved in any case.
(7) ERHARDT is entitled to make or render deliveries only against advance payment or provision of security if it becomes apparent after the conclusion of the contract that the claim to counter-performance is jeopardised by the customer’s inability to pay. An inability to pay is to be assumed, among other things, if a credit insurer or a credit agency (e.g. Creditreform) provides information in this regard. In such cases, ERHARDT may set a reasonable period of time within which the customer shall, at the customer’s discretion, either provide performance upon counter-performance or provide security. After unsuccessful expiry of the deadline, ERHARDT may withdraw from the contract.
(8) The customer shall only be entitled to set-off rights, if the customer’s counterclaims have been legally established, are undisputed or have been acknowledged by ERHARDT. Even under these conditions, the customer shall only be entitled to a right of retention if the customer’s counterclaims are based on the same contractual relationship.
(9) Claims of ERHARDT for remuneration shall become time-barred after five years.
§ 5 Delivery periods and arrears
(1) Delivery periods shall be agreed individually or indicated by ERHARDT upon acceptance of the order. ERHARDT is entitled to extend the delivery period if there are objective reasons for doing so and the extension is reasonable for the customer, taking into account ERHARDT’s interests. In the event of such an extension of the delivery period, the customer shall not be entitled to any claims for damages due to delay. Compliance with the delivery deadlines also presupposes the clarification of all technical and organisational questions, the timely receipt of all documents to be procured by the customer, such as technical specifications, official approvals and releases, as well as the payment of agreed advance or down payments. If the customer fails to comply with such obligations to cooperate, the delivery period shall be extended accordingly. This does not apply if ERHARDT is responsible for the delay.
(2) ERHARDT is permitted to perform partial deliveries provided that they are reasonable for the customer. They constitute an independent transaction and can be invoiced separately.
(3) If ERHARDT is prevented from complying with the agreed delivery periods due to force majeure events, the agreed delivery period shall be extended by the duration of the hindrance. ERHARDT will inform the customer of the circumstances and the expected delay in delivery. If, due to force majeure events, delivery becomes impossible or is not possible at reasonable financial cost, the contracting parties shall each be entitled to withdraw from the contract in whole or in part. In the event of withdrawal, ERHARDT will immediately refund any consideration already paid by the customer.
(4) Force majeure shall mean all unforeseeable events, unless they fall within the sphere of influence or responsibility of ERHARDT or its agents or assistants, as well as such events which – even if they were foreseeable – are outside the sphere of responsibility or influence of ERHARDT or its agents or assistants, unless their effects on the performance of the contract can be prevented through reasonable effort on the part of ERHARDT. These events include war (declared or undeclared), warlike conditions, police or military actions, government-ordered closures or quarantine measures, riots, revolution, rebellion, military or civilian coups, insurrection, tumult, violent clashes, blockades, embargos, operational sabotage, destruction of access routes, pandemics/epidemics, uncontrolled exposure to nuclear energy, fire, floods, severe weather of any kind on the scale of a disaster, earthquakes, landslides or the consequences of lightning.
§ 6 Transfer of risk, default of acceptance
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover at the latest.
(2) In the case of a sale by delivery to a place other than the place of performance, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon delivery of the goods to the forwarder, the carrier or any other person or institution designated to carry out the delivery, even if ERHARDT bears the costs of the delivery. This shall also apply to deliveries for which ERHARDT assumes assembly, installation or other performance obligations in addition to shipment.
(3) The risk of accidental loss and accidental deterioration of the goods shall also pass to the customer if the customer is in default of acceptance.
(4) If the customer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the customer is responsible (e.g. incorrect delivery address; lack of suitable unloading and storage facilities; lack of suitable unloading personnel), ERHARDT shall be entitled, without prejudice to the right to withdraw from the contract pursuant to Para. 5, to claim compensation for the damage resulting therefrom, including any additional expenses (e.g. storage costs). Without prejudice to the assertion of claims for more compensation, ERHARDT is entitled to claim 15% of the net contract price as compensation without proof. The customer reserves the right to provide evidence that the damage did not occur or was of a lesser extent.
(5) In the event of default of acceptance by the customer, ERHARDT shall be entitled to withdraw from the contract after having set a reasonable deadline to no avail. In this case, ERHARDT can demand reimbursement for all costs and expenses which it has incurred as a result of the withdrawal. In the cases of § 323, Para. 2 of the BGB, the setting of a time limit is unnecessary.
§ 7 Warranty
(1) The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title within the meaning of § 434 and § 435 of the German Civil Code (BGB), unless stipulated otherwise below. In any case, the special provisions for the recourse of the entrepreneur within a supply chain in the case of final deliveries to consumers (§ 478 and § 479 of the BGB) remain unaffected. The customer’s rights of recourse against ERHARDT exist only to the extent that the customer has not entered into any agreements with its customers exceeding the statutory rights in respect of defects.
(2) The statements published by ERHARDT or its vicarious agents regarding properties of goods, dimensions or performance data in catalogues, brochures, circulars, advertisements, illustrations, promotional materials and price lists are only part of their agreed nature if they have become part of the individual contract with the customer. The same applies to characteristics resulting from documents, in particular drawings, illustrations, samples or specimens, which are provided to the customer by ERHARDT.
(3) The customer shall carefully inspect the delivered goods immediately after delivery to the customer or to a third party designated by the customer. With respect to obvious defects or defects which would have been apparent upon immediate and careful examination, the goods shall be deemed to have been accepted by the customer if the customer does not notify ERHARDT in writing of the defect within a period of seven working days after delivery. With respect to other defects, the goods shall be deemed to have been accepted by the customer if the customer does not notify ERHARDT in writing of the defect within a period of seven working days after the time when the defect became apparent. In order to preserve the rights of the customer, sending the notification in due time will suffice.
(4) In the event of material defects of the delivered goods, ERHARDT shall be entitled and obligated, at its discretion, which shall be made within a reasonable period of time, to remedy the defect or to provide a replacement delivery. After two unsuccessful attempts at rectification, the customer is entitled to withdraw from the contract in accordance with the statutory provisions, to demand a reduction in the purchase price and/or damages in accordance with § 8. The above legal consequences shall only apply if the two unsuccessful attempts to remedy the defect concern the same defect.
(5) The customer shall give ERHARDT the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained of for inspection purposes no later than 14 days after notification of the defect. In the event of a replacement delivery, the customer shall return the defective goods to ERHARDT in accordance with the statutory provisions.
(6) Upon ERHARDT’s request, the rejected goods shall be returned to ERHARDT carriage paid. In the event of a justified complaint, ERHARDT shall reimburse the costs of the most convenient shipping route; this shall not apply if the costs increase because the goods are not located at the place of their intended use.
(7) ERHARDT will bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect is actually present. If a request by the customer to remedy a defect turns out to be unjustified, the customer shall bear the costs arising therefrom. ERHARDT will invoice the customer for the costs incurred. This shall not apply if the customer is not responsible for the request to remedy the defect. ERHARDT shall not be liable for any expenses incurred because the delivery item was taken to a place other than the delivery address after delivery by ERHARDT, unless the transfer was in accordance with the intended use.
(8) If the defective goods have been installed in or attached to another item in accordance with their nature and intended use, ERHARDT is entitled and obliged, within the scope of subsequent performance, at its discretion either to carry out itself the necessary removal of the defective item and the installation of the repaired or delivered defect-free item or to reimburse the customer for the expenses incurred to this end. ERHARDT shall, however, be limited to reimbursement of expenses if the customer had to bear the expenses in relation to its buyer pursuant to § 445a, Para. 1 of the BGB or if the removal of the defective goods and the installation of the repaired or delivered non-defective goods by ERHARDT is opposed by a justified interest of the customer or if ERHARDT has not declared within a reasonable period of time after receipt of a request for subsequent performance from the customer that it will carry out the removal and installation itself within a reasonable period of time.
(9) The warranty is invalidated if the customer modifies the goods or has them modified by third parties without the consent of ERHARDT and if the rectification of defects is thereby rendered impossible or unreasonably difficult. The same applies in the event that the customer or a third party repairs or modifies the goods improperly or without ERHARDT’s consent or contrary to ERHARDT’s instructions. In any case, the customer shall bear the additional costs of remedying the defect resulting from such measures. If the customer refuses to bear the additional costs, ERHARDT shall be entitled to refuse to remedy the defect. In this case, the customer may order the rectification of defects via the ERHARDT Service department at the customer’s expense.
(10) The customer has the right, in urgent cases (e.g. endangerment of operational safety or to avert disproportionate damage), to remedy the defect itself and to demand reimbursement from ERHARDT of the expenses objectively necessary and proven for this purpose. ERHARDT must be notified in writing without delay of any such self-execution, if possible before the measure is carried out. The defect must also be documented in a comprehensible manner by photo or video and the documents must be provided to ERHARDT without delay. The right of self-performance does not exist if ERHARDT would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
§ 8 Liability
(1) ERHARDT shall be liable for damages, irrespective of the legal grounds – arising from breach of contract or tort – to the extent that fault is relevant in each case, in the case of intent and gross negligence without limitation.
(2) In case of ordinary negligence, ERHARDT shall only be liable
a) for damages arising from injury to life, limb and health,
b) for damages resulting from the breach of an essential contractual obligation (this is an obligation the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, ERHARDT’s liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from Para. 2b) do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods or their freedom from defects was assumed. The same applies to claims under the German Product Liability Act.
(4) There shall be no liability for damages beyond the provisions of this § 8.
§ 9 Limitation period for claims arising from defects:
(1) Pursuant to § 438, Para. 1, No. 3 of the German Civil Code (BGB), the limitation period for claims based on defects is 2 years from delivery and handover of the object of performance. If as acceptance has been agreed, the limitation period shall commence with the successful acceptance.
(2) If ERHARDT has assumed a guarantee for the quality of the goods, in case of fraudulent concealment of a defect, in cases of injury to life, body or health as well as in case of intentional or grossly negligent breaches of duty, the statutory limitation periods shall apply without limitation. The same applies in the cases of § 438, Para. 1, No. 1 of the BGB (claims in rem for surrender by third parties) and in the cases of § 438, Para. 1, No. 2 of the BGB (building materials and components).
(3) The statutory special regulations for the recourse of the entrepreneur within a supply chain in the case of final deliveries to consumers (§ 478 and § 479 of the BGB) and for the suspension of the entrepreneur’s recourse claims according to § 445b, Para. 2 of the BGB remain unaffected by Para. 1.
(4) The limitation provisions of the German Product Liability Act remain unaffected in any case.
(5) If a defect of which the customer has given notice in due time is examined and/or remedied by ERHARDT, the limitation period for this defect is suspended during the period of examination and/or rectification. If ERHARDT fulfils its obligation of subsequent performance by means of a replacement delivery, the limitation period for claims for defects shall start to run anew for the goods delivered as replacement after their delivery only if ERHARDT did not expressly and appropriately reserve the right at the time of subsequent performance to make the replacement delivery only as a gesture of goodwill, in order to avoid disputes or in the interest of the continuation of the supply relationship, or if the defect was only insignificant and could be remedied at low cost and time.
§ 10 Retention of title
(1) ERHARDT retains title to delivered goods until all claims arising from the current business relationship with the customer have been satisfied in full, provided that the customer is a merchant. In the case of a running account, the reserved property shall be deemed to be security for the respective balance of the claim. In the case of contracts with customers who are not merchants, the delivered object of purchase remains the property of ERHARDT until full payment of the purchase price claim.
(2) The customer is obliged to treat the goods delivered under retention of title with care; in particular, the customer is obliged to sufficiently insure the product at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the customer shall carry this out in good time at the customer’s own expense.
(3) The goods delivered under retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. In the event of seizures or other interventions by third parties, the customer must immediately notify ERHARDT and inform the seizing third party of the existing retention of title. All costs incurred by ERHARDT as a result of the seizure are borne by the customer. This applies in particular if the seizing third party is not in a position to reimburse ERHARDT for the costs of judicial or extrajudicial proceedings against it.
(4) ERHARDT is entitled to withdraw from the contract and to demand the return of the goods in the event of a breach of contract by the customer, in particular in the event of default of payment or the breach of obligations pursuant to paragraphs 2 and 3 above.
(5) The customer may resell the goods subject to retention of title within the scope of the customer’s ordinary business operations. However, the resale may only take place with the agreement of a reservation of title for the customer. As of now, the customer assigns to ERHARDT all claims to the amount of the invoice amount accruing to the customer by resale to the third party. This assignment is hereby accepted. After the assignment, the customer is authorised to collect the claims. ERHARDT reserves the right to revoke the collection authorisation and to collect the outstanding receivables itself as soon as the customer fails to duly fulfil its payment obligations towards ERHARDT, gets into default of payment, files an application for the opening of insolvency proceedings or suspends its payments. In this case, the customer is obliged to provide ERHARDT with the data required for assertion (address of the third party customer, invoice number, amount of the claim, etc.), to hand over the necessary documents and to notify the third party of the assignment. ERHARDT, for its part, is entitled to notify the third party of the assignment.
(6) The handling and processing by the customer of goods delivered under reservation of title is always carried out in the name and on behalf of ERHARDT. If the goods delivered under retention of title are combined into a single unit with other objects which are not the property of ERHARDT, or inseparably mixed or blended with other items, then Erhardt acquires co-ownership of the new object in proportion to the value (purchase price plus VAT) of the items that are owned by ERHARDT in comparison to the other combined/blended/mixed items at the time of the combination.
If the combining, mixing or blending of goods provided is carried out in accordance with the preceding paragraphs in such a way that the customer’s item is to be regarded as the main item, the customer shall transfer to ERHARDT the pro rata co-ownership; the customer shall keep the sole ownership or the co-ownership for ERHARDT in each case.
(7) The customer hereby assigns to ERHARDT by way of security any claims which the customer may acquire against third parties from a resale of the new item created by the processing pursuant to paragraph 6. If ERHARDT has acquired co-ownership of the new item, the assignment shall apply in proportion to the co-ownership shares. ERHARDT accepts the assignments in each case. In all other respects, paragraph 5 shall apply mutatis mutandis with regard to the assigned claims.
(8) The customer further assigns to ERHARDT by way of security any claims the customer may have against third parties as a result of the combination of the goods with real property. ERHARDT accepts the assignments in each case. Paragraph 5 shall also apply mutatis mutandis to these claims.
(9) If the value of the securities existing for ERHARDT exceeds its claims by more than 10%, ERHARDT shall be obliged to release securities of ERHARDT’s choice upon request of the customer or of a third party affected by the excess security.
§ 11 Industrial property rights
(1) Unless expressly agreed in the delivery contract or the contract for work and services, the delivery contract or the contract for work and services concluded between the customer and ERHARDT does not grant the customer any industrial property rights belonging to ERHARDT or rights of use thereto.
(2) If the customer provides drafts, designs, technical proposals, samples or the like for the performance of ERHARDT’s services, the customer warrants that no rights of third parties are infringed by their use. If a claim is made against ERHARDT by a third party for infringement of its rights arising from the use of the documents or information provided, the customer shall immediately indemnify ERHARDT against any justified claims of the third party in this respect, unless the customer is not responsible for the infringement of the third party’s rights. The indemnification also includes all necessary expenses incurred by ERHARDT in connection with claims asserted by third parties and their extrajudicial and judicial defence.
§ 12 Final provisions
(1) Contracts with ERHARDT and all legal relationships in connection therewith are governed exclusively by the laws of the Federal Republic of Germany, excluding the conflict of rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of fulfilment is the registered office of ERHARDT, unless otherwise agreed.
(3) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the registered office of ERHARDT shall be the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. ERHARDT shall, however, be entitled to bring an action at the customer’s general place of jurisdiction.
ERHARDT Markisenbau GmbH
Telefon: +49 (0) 8285 8990
Fax: +49 (0) 8285 89933