General sales, delivery and payment terms and conditions for delivery of the goods of ERHARDT Markisenbau GmbH (including machinery and tools)
(Effective: April 2013)
§ 1 Scope of application
(1) These general terms and conditions for sales, delivery and payment (“T&Cs”) apply to all sales and factory delivery contracts which ERHARDT Markisenbau GmbH (“ERHARDT Markisen”) concludes with customers that are merchants, corporate bodies under public law or public sector special funds.
(2) Acustomer’s divergent terms of business shall not apply, even if ERHARDT Markisen does not expressly object to them.
§ 2 Conclusion of a contract
If the customer submits a quotation to ERHARDT Markisen, the contract is concluded when ERHARDT Markisen issues a written or e-mail declaration of acceptance or a contract confirmation.
§ 3 Services performed by ERHARDT Markisen
(1) The scope of performance by ERHARDT Markisen shall be determined in accordance with the respective individual order. Minor changes to the performance in terms of design, material and/or execution are reserved, insofar as the customer has no justifiable interest in rejecting a change of this type.
(2) ERHARDT Markisen retains the copyrights to illustrations, drawings, lists and other documents delivered with the goods.
§ 4 Prices / Payments
(1) Inasmuch as no other express agreement has been made, the respective list prices of ERHARDT Markisen in effect at the time the contract is concluded shall apply, plus packaging, delivery costs to the agreed upon place of delivery (freight, etc.) and value added tax at the respective legally stipulated rate. Invoicing shall take place on the day of delivery.
(2) For sales contracts, the invoice amount is due for payment within 30 days of the invoice date. Furthermore, ERHARDT Markisen grants a 3% cash discount on the net value of goods for sales contracts when payment is made within 10 days of the invoice date, provided that nothing to the contrary has been agreed upon. Payment is to be made in cash or by bank transfer if no other agreement has been made.
(3) When the agreed upon prices are based on the ERHARDT Markisen list prices and the delivery is to be made more than four months after the conclusion of the contract, the list prices of ERHARDT Markisen in effect at the time of delivery shall apply (subject to any agreed upon discount or discount in percent). At the same time, the customer is given the option of withdrawing from the contract that has been concluded if the list prices at the time of delivery deviate by more than 3 percent from the list prices in effect at the time the contract was concluded.
(4) The customer shall only be entitled to setoff rights and/or retention rights when his counterclaims have been confirmed by a court decision or are acknowledged by ERHARDT Markisen. Moreover, the customer shall be entitled to exercise a right of retention only if his counterclaim is based upon the same contractual relationship.
§ 5 Delivery and passing of risk
(1) The specification of the delivery date and place shall be made by mutual agreement. Unless otherwise agreed, delivery shall be on the basis of sale by delivery. The customer shall perform acceptance of the contractual object at the agreed upon delivery time at the place of delivery.
(2) The shipment shall only be insured by ERHARDT Markisen upon the express wish of the customer and at the customer’s expense against theft, breakage or damage due to transportation, fire or water or other insurable risks.
(3) Subject to the correct and punctual delivery of required materials. Aside from this, the delivery date shall be extended by a reasonable amount in the event of actions in the context of labour disputes, especially national and international strikes and lockouts, as well as if unforeseen obstacles arise that lie beyond the influence of ERHARDT Markisen, inasmuch as such obstacles demonstrably have a considerable influence on the completion or delivery of the object of purchase. This also applies if such circumstances occur for suppliers of ERHARDT Markisen.
(4) Responsibility for the circumstances stated in Clause 3 shall also not be borne by ERHARDT Markisen if they occur at a time when there is already an existing delay. ERHARDT Markisen shall inform the customer about the beginning and end of such obstacles as soon as possible in important cases.
(5) In the case of sale by delivery, the risk shall pass to the customer at the beginning of the loading procedure. If shipping is delayed for reasons for which the customer is responsible, the risk passes to the customer upon notification of delivery readiness. Storage costs after passing of risk shall be paid for by the customer.
§ 6 Default of acceptance
(1) The customer enters into default of acceptance if he does not perform acceptance of the contractual object at the agreed upon delivery time and place.
(2) In the event of default of acceptance by the customer, ERHARDT Markisen is entitled to withdraw from the contract after setting a reasonable time period. In this case, ERHARDT Markisen can demand reimbursement for all costs and expenditures which they have incurred as a result of the withdrawal.
(3) Apart from the withdrawal, ERHARDT Markisen can also demand damage compensation including any possible extra expenditures provided that the customer is responsible for the default of acceptance. Irrespective of the possibility of making a claim for higher actual damages, ERHARDT Markisen can demand 15% of the net sales price as compensation without providing evidence. The customer reserves the right to provide evidence that the damage did not occur or was of a significantly lesser extent.
§ 7 Rights regarding defects
(1) If the purchase is a commercial transaction for both parties, the prerequisite for the exercise of rights regarding defects by the customer is that the customer must have fulfilled his obligation to perform inspection and his obligation to notify of defects pursuant to Par. 377 German Commercial Code (HGB) in a proper manner.
(2) If defects occur, ERHARDT Markisen is initially entitled to either rectify the defect or to provide a replacement delivery (“subsequent performance”), at their own discretion. If the subsequent performance by ERHARDT Markisen fails twice, the customer is entitled to either reduce the purchase price or to withdraw from the contract, at his own discretion. In such a case, the customer can also make a claim for damages according to the provisions of Par. 8 if ERHARDT Markisen is responsible for the defect and the customer does not demand a reduction of the purchase price.
(3) The contractual object or the defective part shall be sent to ERHARDT Markisen for inspection without delay, at the latest, however, within 14 days after a timely notification of the defect. The costs for proper shipping both to and from ERHARDT Markisen as well as the risk of demise shall be the responsibility of ERHARDT Markisen.
(4) The customer’s rights regarding defects shall expire one year after delivery of the contractual item. However, if the customer makes claims for damages in the context of liability for defects, the statutory limitation periods shall apply.
(5) An additional guarantee shall apply for the goods delivered by ERHARDT Markisen only if it was granted expressly in the declaration of acceptance or the order confirmation for the respective item. ERHARDT Markisen shall only grant a guarantee of quality or guarantee of durability for drawings or illustrations published or delivered by ERHARDT Markisen or its vicarious agents, for dimensions indicated or other performance data or for the delivery of samples or specimens when this is expressly stated to be the case (Par. 443 German Civil Code (BGB).
(6) If a defect, for which the customer provided timely notification, has been inspected and/or rectified by ERHARDT Markisen, then the limitation period for the customer’s rights regarding defects with respect to this defect is inhibited for the duration of the time period of the inspection and/or the rectification. This means that the limitation period is extended by this time period. A restarting of the limitation period only takes effect if ERHARDT Markisen expressly affirms the customer’s claims arising from liability for defects.
(7) Minor changes to the contractual object in terms of design and/or execution do not constitute grounds for the exercise of rights regarding defects if the customer has no justifiable interest in rejecting a change of this type.
(8) Natural wear, damage through improper handling or operation as well as the use of incorrect accessories exclude the possibility of exercising rights regarding defects, provided that it cannot be ruled out that the defect is due to these circumstances. The same applies if modifications by the customer or repairs or modifications by a third party have been carried out on the contractual object or third-party parts have been installed and it cannot be ruled out that the defect is due to these circumstances. ERHARDT Markisen grants no rights regarding defects for damage that is the result of unsuitable or improper use, faulty installation or initial startup by the customer or third parties, natural wear, or faulty or negligent handling. Claims for expenditures that are required for the purpose of subsequent performance are excluded if the expenditures increase because the delivery item is subsequently brought to a location different than the delivery address, except if this transfer complies with the intended use.
§ 8 Liability
(1) ERHARDT Markisen shall be liable in full measure for damage caused deliberately by itself, its legal representatives or its vicarious agents. The same shall apply for damage due to injury to life or limb or to health caused culpably by the aforementioned persons. In like manner, ERHARDT Markisen shall be liable in full measure for the gross negligence of its legal representatives and their employees with managerial responsibility.
(2) If the conditions stated in Clause 1 are absent, ERHARDT Markisen – regardless of the legal justification shall only be liable if a significant contractual obligation (cardinal obligation) is violated negligently or its other vicarious agents that are not employees with managerial responsibility cause damage through gross negligence. In these cases, the liability of ERHARDT Markisen shall be limited to the foreseeable damage that is typical for the nature of the contract. Cardinal obligations are those obligations which must be fulfilled as a precondition for the proper fulfillment of the contract to take place and on the compliance with which the customer may regularly depend. These are therefore obligations that, when breached, endanger the attainment of the objective of the contract.
(3) The present limitation of liability does not apply for claims in accordance with product liability law or because of the absence of a guaranteed quality or a promised characteristic of the contractual object. To the extent that liability is excluded or limited, this shall apply also for the personal liability of the legal representatives, employees with managerial responsibility and other vicarious agents of ERHARDT Markisen.
§ 9 Supply chain / Supplier recourse
(1) If the customer is acting as a reseller or intermediate and the delivery item is resold to a consumer by him or one of his customers, then, in the context of this supply chain (Par. 478 & 497 German Civil Code (BGB)), the provisions of Par. 7 Clause 2 and Clause 4 shall not apply. The statutory regulations of Par. 478 & 479 shall apply in lieu thereof.
(2) The customer’s rights of recourse against ERHARDT Markisen shall exist only to the extent that the customer has made no agreements with his customer beyond the statutory warranty claims.
§ 10 Retention of title
(1) The delivered object of purchase shall remain the property of ERHARDT Markisen (“goods subject to retention of title”) until all amounts receivable that are due ERHARDT Markisen from business transactions with the customer have been paid in full, provided that the customer is a merchant. In contractual relationships with customers who are not merchants, the delivered object of purchase shall remain the property of ERHARDT Markisen until the purchase price claim has been paid in full.
(2) The customer is entitled to dispose of the goods subject to retention of title only if sold by means of proper commercial transaction and only if it is ensured that the amounts receivable arising from this are transferred to ERHARDT Markisen and the customer is not in arrears.
(3) The customer assigns the amounts receivable due to the customer from the sale or another legal justification concerning the goods subject to retention of title to ERHARDT Markisen as security. The customer, however, retains the revocable right to collection of the amounts receivable after the assignment, whereby, however, the authority of ERHARDT Markisen themselves to carry out collection of the amounts receivable shall remain unaffected thereby. ERHARDT Markisen may only revoke the authority for collection in the event of liquidation.
(4) After withdrawing from the contract, ERHARDT Markisen is entitled to receive the return of the goods subject to retention of title, to disclose the assignment for security, to make use of the goods subject to retention of title and the assigned amounts receivable to satisfy claims against the customer that are due. The customer is under obligation to disclose the debtor to ERHARDT Markisen and to make the goods subject to retention of title available to ERHARDT Markisen. Other rights remain unaffected by this provision.
(5) The customer is obligated to handle the goods subject to retention of title with care. If the goods subject to retention of title are distrained by third parties at the customer, the customer must notify ERHARDT Markisen of the distraint without delay and inform the third party exercising distraint of the retention of title. All costs which arise for ERHARDT Markisen due to the distraint shall be borne by the customer. The same shall apply in like manner for any other infringement upon the retention of title.
(6) If the goods subject to retention of title are processed by the purchaser, it is agreed that the processing is performed in the name and for the account of ERHARDT Markisen and ERHARDT Markisen shall directly acquire ownership, or – if the processing is performed using the materials of several owners or the value of the processed object is greater than the value of the goods subject to retention of title – co-ownership (ownership in fractional shares) of the newly created object in the proportion of the value of the goods subject to retention of title to the value of the newly created object. In the event that no such acquisition of ownership takes place for ERHARDT Markisen, the customer transfers his future ownership or co-ownership – in the above-stated proportion – of the newly created object to ERHARDT Markisen as security already as of now. If the goods subject to retention of title are connected with other objects to create a unified object or are inseparably mixed with other objects and if one of the other objects is to be deemed the main object, then, to the extent that the object belongs to ERHARDT Markisen, ERHARDT Markisen transfers its co-ownership of the unified object to the customer in the proportion stated in sentence 1.
§ 11 Insurance for goods subject to retention of title
In the case of goods subject to retention of title, the customer is obligated to insure these at his own expense against damage due to fire, water and theft in an amount sufficient to cover the value when new and to provide ERHARDT Markisen with evidence of this.
§ 12 Industrial property rights
(1) Unless explicitly agreed otherwise, the contract between the customer and ERHARDT Markisen shall not transfer any industrial property rights of ERHARDT Markisen.
(2) Conceptual designs, constructions or suggestions for improvements by the customer shall be subject to copyright. The customer shall assume the full responsibility for ensuring that no infringement of the rights of third parties occurs through the use of the samples he has presented or that have been manufactured according to his specifications.
§ 13 Court of jurisdiction / Place of performance / Applicable law
(1) The court of jurisdiction for all disputes and types of proceedings arising from this legal relationship including its validity shall be Günzburg, provided that the customer is a merchant, a corporate body under public law or a public sector special fund. ERHARDT Markisen is also entitled to take legal action at the domicile of the customer.
(2) The place of performance shall be Günzburg subject to other provisions contained in these T&Cs, provided that the customer is a merchant, a corporate body under public law or a public sector special fund.
(3) With respect to all rights and obligations arising from contracts concluded with ERHARDT Markisen, the laws of the Federal Republic of Germany governing the legal relationships of domestic parties shall apply to the exclusion of the UN Convention on the International Sale of Goods (CISG).
§ 14 Final provisions
(1) Verbal subsidiary agreements and subsequent additions shall only become valid when they are confirmed in writing by ERHARDT Markisen. With the exception of managing directors, authorised officers or general agents of ERHARDT Markisen, the employees of ERHARDT Markisen are not authorised to enter in to divergent verbal agreements.
(2) If any provision of these T&Cs should be void, the validity of the remaining provisions shall remain unaffected thereby.
ERHARDT Markisenbau GmbH
Telefon: +49 (0) 8285 8990
Fax: +49 (0) 8285 89933