Terms of sale and delivery
I. Validity
1. These Terms of Sale and Delivery are only valid if the customer is a company (Section 14 of the German Civil Code (BGB)), a legal person under public law or a special fund under public law. Only our terms of sale, delivery and installation shall apply; any contrary terms of purchase drawn up by the customer shall only be valid if expressly acknowledged by us in writing. All quotations, agreements, orders and deliveries are subject to the following conditions and shall be deemed to have been acknowledged by the placement an order or the acceptance of a delivery. Any deviations from these terms must be in writing. Any verbal additional agreements must be put down in writing; this applies in particular to verbal offers of any kind made by our representatives or employees. In the case of orders placed over the phone, only the wording of the order confirmation shall be definitive.
II. Offers, order execution
1. All offers are non-binding. The ordering of goods by the customer shall be considered a binding contractual offer. Unless stated otherwise in this order, we shall be entitled to accept this contractual offer within two weeks of receipt.
2. The nature and scope of our deliveries and services are defined solely by our order confirmation. This also applies if the order confirmation contradicts a written or telephone order and this is not immediately contradicted.
3. We reserve the right to make technical changes after the order confirmation has been dispatched.
III. Delivery period
1. The delivery period shall be individually agreed or specified by us upon acceptance of the order. Where this is not the case, the delivery period shall be five weeks from the date of the contract.
2. Disruptions to operations caused by acts of God, civil unrest, strike or lockout, machine malfunction or material shortages on the part of our suppliers shall absolve us for the duration of the hindrance from the delivery obligations entered into.
3. If another delivery deadline is defined in the event of delayed delivery, it must not be less than four weeks. After this deadline has passed, the customer shall be entitled to withdraw from the contract. No other claims, e.g. relating to reimbursement of costs or compensation, may be lodged against us.
IV. Delivery, prices, payment terms
1. For orders worth €1,000.00 or more, delivery of window shutters and fittings to the customer's premises is free. For order values under €1,000.00, a standard freight charge of €50.00 per order shall apply. This applies to the following countries: DE, FR, CH, AT, BE, NL, LU, ES, IT (delivery to mainland addresses only). For the shipment of packages or fittings and advance or additional deliveries, delivery will only be made against payment of the actual shipping costs. For contract coating orders, a separate price list for shipping costs applies.
2. Should there be changes to key cost elements in production, e.g. materials, wages, freight rates, energy costs, taxes or customs duties, we expressly reserve the right to modify prices. Current prices at the date of contract shall apply.
3. Our invoices are payable within 30 days net of receipt.
4. After the above payment deadline, the customer shall be in default. In the event of default, the purchase price plus the applicable statutory interest rate shall become payable. We reserve the right to claim further damages caused by default.
5. The customer shall have rights of set-off or retention only insofar as its claim is legally determined or undisputed.
6. We reserve the right to make part deliveries and to invoice separately upon delivery.
7. Should it become apparent after conclusion of the contract that our claim in respect of the purchase price is at risk because of a lack of ability to pay on the part of the customer (e.g. application to open insolvency proceedings), we shall be entitled – after giving a notice period, if required – to withdraw from the contract (within the meaning of Section 321 of the German Civil Code (BGB)). For contracts for the manufacture of unwarrantable goods (custom-made goods), we shall give notice of our immediate withdrawal; the statutory regulations regarding the dispensability of setting a notice period shall remain unaffected.
8. Payments by cheque shall be credited subject to redemption. Payments by bill of exchange will only be accepted by prior agreement. If we consent to this type of payment, bills of exchange will only be accepted on account of performance. All resultant costs and charges, including discount charges, shall be borne by the customer.
V. Risk transfer, transportation, packaging
1. Standard packaging (single boxes) is free of charge. Special packaging involving pallets, packaging for haulage or transport by sea etc. shall attract additional charges for the extra costs involved.
2. The risk of accidental loss or deterioration of the goods passes to the customer as soon as we hand over the goods to the shipper or the German National Railway. If the goods are transported in one of our vehicles, risk is transferred as soon as the vehicle enters the customer's premises or reaches its destination. Unloading takes place at the customer's own risk.
VI. Notifications of defects, warranty
1. If the delivered goods are defective, we may initially choose whether to remedy the defect (repair) or deliver goods free of defect (replacement). Our right to refuse to remedy the defect pursuant to statutory requirements remains unaffected.
2. The customer's claim for defects implies that it has fulfilled its commercially legal obligation to inspect the goods and give notice of defects within the meaning of Sections 377 and 381 of the German Commercial Code (HGB). If a defect becomes evident during inspection or later, notification must be given in writing immediately. Notification shall be deemed to be immediate if given within eight days and assumes timely receipt of such notification by us. Irrespective of its commercially legal obligation to inspect the goods and give notice of defects, the customer shall give notice in writing of obvious defects (including incorrect or short delivery) within eight days of delivery, assuming timely receipt of such notification by us. Should the customer fail to conduct a proper inspection of the goods or give proper notification of defects, we shall not be held liable for defects for which no notification was given.
3. Costs resulting from unjustified notifications of defects will be borne by the customer.
4. If remedying the defect has proven ineffective or the period fixed by the customer within which to remedy the defect has expired or is rendered unnecessary in terms of statutory provisions, the customer may withdraw from the contract or reduce the price. There is no right of rescission, however, in respect of minor defects. Claims for damages or reimbursement of expenses incurred to no avail by the customer shall be restricted to the following stipulations and shall otherwise be excluded.
5. Observance of the technical data sheets and our quality guidelines is a general prerequisite for the warranty on deliveries and services. This also includes adherence to the installation instructions of EHRET GmbH. Installation and/or operation in full or partial deviation from our installation and operating instructions will lead to the warranty for defects and any additional guarantees becoming void. As a rule, delivery and service specifications can only be construed as confirmed to the extent that they can be derived from the technical data sheets, the EHRET quality guidelines and the installation instructions of EHRET GmbH. Public statements, promotions or advertising measures do not contain any binding description of the agreed properties of our deliveries and services. Our technical data sheets and the EHRET quality guidelines can be consulted and downloaded at any time on our website www.ehret.com. We shall be happy to forward the technical data sheets and quality guidelines upon written request.
VII. Other liability
1. Unless stated otherwise in these Terms of Sale and Delivery or the provisions below, we shall be liable for any breach of contractual or non-contractual obligation under the applicable statutory provisions.
2. We shall be liable to offer compensation for damage, on whatever legal grounds, in the event of wilful intent and gross negligence. In the event of simple negligence, we shall only be held liable
a) for damage arising from loss of life, personal injury or damage to health,
b) for damage arising from breach of an essential contractual obligation (any obligation whose fulfilment enables the proper execution of the contract and on whose compliance the customer regularly relies or may rely); in this event, our liability shall be limited to compensation of foreseeable, typical loss.
3. The limitations of liability stipulated in clause VII, paragraph 2 shall not apply in the event that we have fraudulently concealed a defect or have furnished a warranty for the quality of the goods. The same shall apply to claims by the customer pursuant to the German Product Liability Act.
4. On the grounds of a breach of obligation which does not consist in a defect, the customer may only withdraw from or terminate the contract if we are responsible for such breach of obligation. An unrestricted right of termination of the customer (particularly in accordance with Sections 651 and 649 of the German Civil Code (BGB)) is excluded. Moreover, statutory provisions and legal consequences shall apply.
VIII. Statute of limitations
1. Notwithstanding Section 438 para. 1 item 3 of the German Civil Code (BGB), the general statute of limitations applicable to claims arising from quality and legal defects shall be one year after delivery. If acceptance has been agreed, the limitation period begins with the acceptance.
2. In respect of goods used in construction or a product which has been used for its usual purpose in relation to construction, however, and has caused defects in construction, the statute of limitations pursuant to the statutory provisions under Section 438 para. 1 item 2 of the German Civil Code (BGB) shall be five years after delivery. The special statutory requirements in respect of collateral rights of third parties (Section 438 para. 1 item 1 of the German Civil Code (BGB)), or in the event of bad faith on the part of the seller (Section 438 para. 3 BGB) as well as claims in respect of supplier recourse in the event of delivery to an end consumer (Section 479 BGB) shall remain unaffected.
3. The foregoing statutes of limitations applicable to sales law shall also apply to contractual and non-contractual claims for damages asserted by the customer based on the receipt of defective goods, unless the application of the regular statute of limitations (Sections 195 and 199 of the German Civil Code (BGB)) would result in shortening the period of limitation in any particular case. In any event, the statutes of limitations as provided for in the German Product Liability Act shall remain unaffected. In all other cases, paragraph VII shall apply to claims for damages made by the customer, notwithstanding the statutes of limitations as provided for by law.
IX. Retention of title
1. We retain title to the goods until all payments arising from concluded delivery contracts with the customer are received.
2. The customer cedes to us all purchase price claims on its customer from the sale of the goods supplied subject to retention of title. The customer shall be entitled to collect these ceded claims. This shall not affect our entitlement to collect the claims ourselves. The customer undertakes to notify us on demand of the ceded claims and the relevant debtors, to provide us with all the information necessary for collection and to notify the debtors in writing of the cession of the claims.
3. The customer is not entitled to pledge the goods supplied, subject to retention of title, or to assign them as security to third parties. The customer must notify us immediately of any seizure or other interventions by third parties.
4. If the customer contravenes the contract, in particular by falling into payment arrears, the customer shall be obliged to return the goods to us on demand. This shall only constitute a withdrawal from the contract if expressly declared by us.
5. If the goods subject to retention of title are sold together with other goods that do not belong to us, the customer's claim towards the purchaser amounting to the purchase price agreed between us and the customer shall be considered, upon conclusion of the delivery contract, as ceded to us.
6. If our retained goods cease to exist because they have been installed by the customer, the customer shall immediately cede to us any corresponding claims for compensation against the purchaser to the amount of our purchase price claim. This obligation shall also apply if installation is performed by our employees on behalf of the customer.
7. We shall release any securities if the secured claims are oversecured by more than 20%.
X. Place of fulfilment, place of jurisdiction, effectiveness
1. The place of fulfilment for deliveries and payments shall be the headquarters of EHRET GmbH.
2. The place of jurisdiction for disputes arising from the delivery contract, its creation and its effectiveness, including disputes relating to cheques and bills of exchange, is the competent court for 77972 Mahlberg, Germany. We are, however, entitled to institute legal proceedings at the general place of jurisdiction of the customer.
3. The ineffectiveness of individual clauses in the contract shall not affect the rest of the contract.
4. The customer may only effectively transfer rights arising from this contract with our express written consent.
5. The contract is subject to German law, to the exclusion of international uniform law, and the UN Convention on the International Sale of Goods in particular.