General Terms & Conditions

General Terms & Conditions

General Terms & Conditions of Sale, Delivery and Payment for Deliveries of Goods by Erhardt Markisenbau GmbH (including machines and tools)

(As of: April 2013)

§ 1 Scope

(1) These General Terms & Conditions of Sale, Delivery and Payment (“Terms & Conditions”) apply to all purchase contracts and contracts for work and services that Erhardt Markisenbau GmbH (“Erhardt Markisen”) concludes with customers who are entrepreneurs, legal persons under public law or special funds under public law.

(2) Other terms and conditions of business of the Customer do not apply, even if  Erhardt Markisen does not expressly reject them.

§ 2 Conclusion of contract

When the Customer makes an offer to Erhardt Markisen, the contract comes into being with the written or e-mail declaration of acceptance or order confirmation from Erhardt Markisen.

§ 3 Services of Erhardt Markisen

(1) The scope of services of Erhardt Markisen is determined by the individual order.
Minor changes to the service in terms of design, material and/or execution remain reserved, insofar as the Customer has no legitimate interest in rejecting a change of this sort.
(2) Erhardt Markisen reserves the copyright to  illustrations, drawings, lists and other documents provided with the goods.

§ 4 Prices / payments

(1) Unless otherwise expressly agreed, the current list prices of  Erhardt Markisen that apply on conclusion of contract apply, plus packaging, costs of delivery to the agreed delivery location (freight, etc.) and Value Added Tax at the applicable statutory rate.
The invoice is issued on the date of delivery.
(2) For purchase contracts, the invoice amount is due for payment within 30 days of the date of invoice.
In addition, Erhardt Markisen offers a discount of 3% on the net value of the goods for payment of purchase contracts within 10 days of the date of invoice, unless otherwise agreed.
In the absence of any specific agreement, payment shall be made in cash or by bank transfer.
(3) Insofar as the agreed prices are based on the list prices of Erhardt Markisen and delivery is to be completed more than 4 months after conclusion of contract , the valid list prices of Erhardt Markisen on delivery shall apply (less any agreed or percentage discount).
At the same time, the Customer has the option to withdraw from the concluded contract  if the list prices at the time of delivery deviate more than 3 percent from the list prices at the time of conclusion of contract.
(4) The Customer has rights to offset and/or rights of retention only  if his counterclaims are legally established or have been recognised by Erhardt Markisen.
Moreover, the Customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§ 5 Delivery and transfer of risk

(1) The time and place of delivery are determined by agreement.
Unless otherwise agreed, delivery is by carrier.
The Customer is obliged to accept the object of the contract at the agreed delivery time at the place of delivery.
(2) The shipment shall be insured against theft, breakage, transport, fire and water damage or other insurable risks by Erhardt Markisen only at the express request of the Customer and at his expense.
(3) Delivery depends on correct and timely delivery to Erhardt Markisen by its suppliers.
Apart from this , the delivery period shall be extended by an appropriate amount in the event of actions in the context of industrial disputes, in particular national and international strikes and lock-outs, or the occurrence of unforeseen obstacles that lie outside the influence of Erhardt Markisen, insofar as such obstacles have a demonstrably significant effect on production or delivery of the purchased item.
This also applies if the circumstances affect suppliers of Erhardt Markisen.
(4) The circumstances specified in para. 3 are also not the responsibility of Erhardt Markisen if they come about during an existing delay.
In serious cases, Erhardt Markisen shall notify the Customer of the start and end of  obstacles of this sort as soon as possible.
(5) In the case of delivery by carrier, the risk is transferred to the Customer at the start of the loading process.
If shipment is delayed for reasons that are the responsibility of the customer , the risk is transferred to the Customer on notification of readiness for shipment.
Storage costs after the transfer of risk shall be paid by the customer.

§ 6 Default of acceptance

(1) The Customer is in default of acceptance if he does not accept the object of the contract at the agreed delivery time and place.
(2) In the event of default of acceptance by the Customer, Erhardt Markisen is entitled to withdraw from the contract following an appropriate period of notice.
In this case, Erhardt Markisen may demand reimbursement of all costs and expenses that it incurs as a result of the withdrawal.
(3) In addition to the withdrawal, Erhardt Markisen may demand compensation including for any additional expenses, insofar as the Customer is responsible for the default of acceptance.
Irrespective of the opportunity to make a claim for higher actual damages, Erhardt Markisen may demand 15% of the net purchase price as compensation without evidence.
The Customer retains the right to demonstrate that the damage did not come about or was considerably less extensive.

§ 7 Rights in the event of defects

(1) If the purchase is a commercial transaction for both parties, the assertion of rights in the event of defects under the purchase contract by the Customer presupposes that the Customer has properly met his inspection and complaint obligations pursuant to § 377 of the German Commercial Code (HGB).
(2) If defects occur, Erhardt Markisen is initially entitled either to rectify the defects or provide replacement delivery (“supplementary performance”) at its discretion.
If the supplementary performance by Erhardt Markisen is unsuccessful on two occasions, the Customer is entitled at his discretion either to reduce the purchase price or withdraw from the contract.
In such a case, the Customer may also claim compensation in accordance with the provisions of § 8 if Erhardt Markisen is responsible for the defect and the Customer has not demanded a reduction in the purchase price.
(3) The object of the contract or the damaged item must be sent to Erhardt Markisen for inspection immediately, at the latest within 14 days of punctual notification of the defect.
The costs of standard delivery and return and the risk of loss shall be met by Erhardt Markisen.
(4) The rights of the Customer in the event of defects expire one year from delivery of the purchased item.
However, if the Customer makes claims for compensation in the context of liability for defects, the statutory expiry periods apply.
(5) An additional guarantee only exists for goods delivered by Erhardt Markisen if this was provided expressly in the declaration of acceptance or order confirmation for the item concerned.
In supplying drawings or illustrations, specified dimensions or other performance data or the supply of patterns or samples published or provided by Erhardt Markisen or its vicarious agents, Erhardt Markisen is only providing a guarantee of quality or durability (§ 443 of the German Civil Code (BGB)) if they are expressly designated as such.
(6) If a defect about which the Customer has made a punctual complaint is being inspected and/or repaired by Erhardt Markisen, the expiry period for the Customer’s rights in the event of defects in connection with this defect is suspended for the period of the inspection and/or repair.
This means that the expiry period shall be extended by this period.
The expiry period only starts again from the beginning if Erhardt Markisen expressly recognises the claims of the Customer in respect of liability for defects.
(7) Minor modifications to the construction and/or design of the object of the contract do not justify assertion of defect rights if the  Customer does not have a legitimate interest in rejecting a modification of this sort.
(8) Natural wear, damage resulting from improper handling or operation and the use of incorrect accessories preclude the assertion of defect rights insofar as it cannot be ruled out that the defect results from those circumstances.
The same applies if modifications are made to the object of the contract by the Customer or repairs or modifications are carried out by third parties or parts of external origin are installed and it cannot be ruled out that the defect results from those circumstances.
Erhardt Markisen does not grant any defect rights for damage caused by unsuitable or improper use, faulty installation or commissioning by the Customer or third parties, natural wear, faulty or careless handling.
Claims for expenses incurred for supplementary performance are excluded if the expenses increase because the delivered item has subsequently been taken to a location different from the delivery address , unless the relocation corresponds to intended use.

§ 8 Liability

(1) Erhardt Markisen is liable without limitation for damages caused intentionally by it, its legal representatives or its vicarious agents.
The same applies to damages resulting from loss of life, physical injury or damage to health which are caused culpably by the aforementioned persons.
Erhardt Markisen is also liable without limitation for the gross negligence of its legal representatives and executive officers.
(2) If the prerequisites specified in para. 1 do not apply, Erhardt Markisen is liable - whatever the legal grounds - only if a significant contractual obligation (cardinal obligation) is breached negligently or its other vicarious agents, who are not among the executive officers, cause damage through gross negligence.
In these cases, the liability of Erhardt Markisen is limited to the foreseeable damages that are typical of this type of contract.
Cardinal obligations are those obligations the fulfilment of which facilitate the proper execution of the contract in the first place and on compliance with which the Customer may normally depend.
These are therefore obligations the breach of which puts achievement of the purpose of the contract at risk.
(3) The above limitation of liability does not apply to claims under the German Product Liability Act and resulting from the absence of a guaranteed quality or promised characteristic of the object of the contract.
Insofar as liability is excluded or limited, this also applies to the personal liability of the legal representatives, executive officers and other vicarious agents of Erhardt Markisen.

§ 9 Supply chain / Recourse of the supplier

(1) If the Customer is a dealer or distributor and if the object of delivery is sold on by him or his customers or other dealers to a consumer, the provisions of § 7 paragraph 2 and paragraph 4 do not apply within this supply chain (§§ 478, 497 of the German Civil Code (BGB)).
They are replaced by the statutory regulations of §§ 478, 479 BGB.
(2) The Customer’s rights of recourse against Erhardt Markisen only exist insofar as the Customer has made agreements with his customer that go beyond the statutory defect rights.

§ 10 Retention of title

(1) The delivered purchased item remains the property of Erhardt Markisen (“retained goods”) until full payment of all claims of Erhardt Markisen arising from the business relations with the Customer, insofar as the Customer is a merchant.
In contractual relationships with customers who are not merchants, the delivered purchased item remains the property of Erhardt Markisen until full payment of the claim for the purchase price.
(2) The Customer is entitled to dispose of the retained goods only in the case of sale in the normal course of business and only if it is guaranteed that the claims arising from it are transferred to Erhardt Markisen and the Customer is not in default.
(3) The Customer shall assign to Erhardt Markisen as security the claims due to the Customer from the sale or on any other legal grounds affecting the retained goods.
However, the Customer remains revocably entitled to collect the claims, even after the assignment; the authority of Erhardt Markisen to collect the claims itself remains unaffected by this.
Erhardt Markisen may only revoke the collection authorisation in the case of an enforcement event.
(4) Following withdrawal from the contract, Erhardt Markisen is entitled to take back the retained goods, to make public the assignment of security and to realise the retained goods and assigned claims in order to satisfy outstanding claims against the Customer.
The Customer is obliged to notify the debtor, Erhardt Markisen, and to give Erhardt Markisen access to the retained goods.
Other rights remain unaffected by this regulation.
(5) The Customer is obliged to treat the retained goods with due care.
In case of attachment of the retained goods by third parties, the Customer must inform Erhardt Markisen of the attachment without delay and draw the attention of the third parties making the attachment to the existing retention of title.
All of the costs incurred by Erhardt Markisen as a result of the attachment shall be met by the Customer.
The same applies correspondingly in the case of any other impairment to the retention of title.
(6) If the retained goods are processed by the Customer, it is agreed that the processing shall be carried out in the name and on account of Erhardt Markisen as the manufacturer and Erhardt Markisen shall immediately acquire ownership or – if the processing involves materials belonging to several owners or the value of the processed item is higher than the value of the retained goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the retained goods to the value of the newly created item.
In case Erhardt Markisen should not acquire ownership in this way , the Customer hereby assigns his future ownership or co-ownership – in the
ratio specified above – of the newly created item to Erhardt Markisen as security.
If the retained goods are combined with other items to create a single item or they are inseparably mixed and if one of the other items is to be regarded as the main item, Erhardt Markisen shall, insofar as the item belongs to it, transfer to the customer a share of the co-ownership of the single item in the ratio specified in clause 1.

§ 11 Insurance of the retained goods

The Customer is obliged to insure retained goods adequately for their replacement value against fire and water damage and theft at his own expense and to provide evidence of this to Erhardt Markisen.

§ 12 Commercial proprietary rights

(1) Unless expressly agreed otherwise, no commercial proprietary rights of Erhardt Markisen are transferred between the customer and Erhardt Markisen under the contract.
(2) Drafts, designs or suggested improvements of the Customer are protected by copyright.
The Customer accepts full responsibility for ensuring that use of the patterns provided by him or manufactured according to his specifications does not infringe the rights of any third parties.

§ 13 Place of jurisdiction / Place of performance / Applicable law

(1) The place of jurisdiction for all disputes and types of action arising from this legal relationship including its validity is Günzburg, insofar as the Customer is a merchant, a legal person under public law or a special fund under public law.
Erhardt Markisen is also entitled to take action at the location of the Customer.
(2) The place of performance, unless otherwise regulated in these Terms & Conditions, is Günzburg, insofar as the Customer is a merchant, a legal person under public law or a special fund under public law.
(3) The law {MQ}of the Federal Republic of Germany, excluding the UN Convention on the International Sale of Goods (CISG), is definitive for the legal relationships between domestic parties as far as all rights and obligations arising from contracts concluded with Erhardt Markisen are concerned.

§ 14 Concluding provisions

(1) Supplementary verbal agreements and subsequent additions are only valid if they are confirmed in writing by Erhardt Markisen.
With the exception of managing directors, authorised officers and general representatives of Erhardt Markisen, the staff of Erhardt Markisen are not authorised to make alternative verbal agreements.
(2) Should a provision of these Terms & Conditions be invalid, the validity of the remaining provisions is not affected.