General Terms and Conditions
of Erler+Pless GmbH
Art. 1 Scope of application, general
- Our general terms and conditions of sale shall apply exclusively; we shall not recognise any terms and conditions of business which conflict with or deviate from these terms and conditions, in particular the purchaser's terms and conditions of purchase, unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we execute without reservation the delivery to the customer in the knowledge that the customer's terms and conditions conflict with – or deviate from – our own.
- Our conditions of sale shall also apply to all future transactions with the customer.
- Consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction with us for a purpose that cannot be attributed to either his commercial or his self-employed professional activity. Entrepreneur in the sense of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction with us.
Art. 2 Preparation of offer / conclusion of contract
- Our offers and catalogue prices are subject to change. Orders shall not be deemed to have been accepted by us until they have been confirmed by us in writing. Technical changes as well as changes in form and colour are reserved within reasonable limits.
- By placing an order, the customer bindingly declares that we are to provide the ordered delivery or service.
- Our declarations of acceptance must be in writing in order to be legally effective. The same shall apply to supplements, amendments and subsidiary agreements.
- We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties. This applies in particular to such written documents that are designated as confidential; the customer requires our express written consent before forwarding them on to third parties.
- The conclusion of a contract with an entrepreneur is subject to the proviso that we are supplied by our suppliers at the conditions customary in the industry and correctly and on time. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction is concluded with our suppliers. The customer shall be informed immediately of the non-availability of the delivery/service. If the customer has already rendered a service in return, this will be refunded to him immediately.
- We shall only be liable for damage to or loss of templates and samples provided to us in the event of gross negligence or wilful intent. This limitation of liability applies to our employees, representatives and vicarious agents. No liability is assumed for templates and samples that have been given or lost. Production tools such as print data, drawings, 3D animations and the like shall be invoiced pro rata and shall remain our property.
Art. 3 Delivery and administration of order-related data
- Unless otherwise agreed in writing, we shall execute all orders according to the print data supplied to us by the customer.
- The customer must transmit this print data to us in the file formats specified by us on our website or, as the case may be, in our order forms at his own expense and risk. In particular, the customer is solely responsible for the completeness and correctness of the data provided to us.
- The customer is obliged to provide us with the relevant data. The data must be free of harmful software; in particular, the customer is obliged to use up-to-date anti-virus programs and the like for this purpose. Otherwise, the customer shall compensate us for any damage.
- In general, the data is archived until the order has been properly fulfilled. Only upon the express request of our customers, do we offer the possibility to archive the data for subsequent orders on our servers for a maximum of 3 years from the date of the order. This shall take place against separate remuneration in accordance with a written agreement.
- We can – and will – only check the data supplied directly to us by the customer, or transmitted by third parties on its behalf, for obvious errors.
- If, in accordance with the contract, we store the customer's print data for a maximum of 3 years beyond the specified date, the customer must pay us a separate fee for the further use of this archived print data, i.e. for its preparation for further processing. Moreover, if necessary, this fee is also due for the forwarding of the print data or the documents and designs produced from it by us, in order to cover the specified expenditure.
- If data archived by us (as has been agreed upon) is lost or damaged, we shall only be liable for it in accordance with the provisions of Articles 4 and 7 of this contract.
Art. 4 Defects and warranty
- The following applies to the presence of defects:
- Insignificant deviations in colour, quality etc. shall not be deemed defects.
- In the case of goods specially manufactured for the customer, excess or short deliveries of up to 10% of the ordered quantity are permissible if the exact quantity delivered is invoiced.
- We explicitly point out that graphic designs can have an influence on the light colour or homogeneity of the lighting depending on the motif. Motif-related negative effects on light scattering and light colour are therefore not recognised as defects unless this can be prevented by technology. We reserve the right to make technically necessary changes to system components if this should be necessary due to the order.
- Depending on the material and printing process, the printing methods used may lead to technologically determined colour deviations that cannot be recognised as defects. We compensate colour deviations from reproduced full colours according to customer specifications in digital printing as best as possible.
- If a customer waives a professional data check and the creation of a proportion sketch for approval, no subsequent complaints regarding colour and proportion can be accepted.
- The following applies to our samples and specimens (hereinafter referred to as samples): Our samples are often produced under different conditions than those given in the subsequent production process. It is therefore unavoidable that the goods to be delivered by us, as well as our samples, are not always completely identical. The properties of our samples are therefore not to be regarded as the agreed quality of the goods to be delivered by us within the meaning of Art. 434 I, No. 5 BGB (German Civil Code). Rather, only the relevant technical standards and any expressly contractually agreed quality are decisive for our deliveries of goods.
- The warranty rights of the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with Art. 377 HGB (German Commercial Code).
- If there is a defect in the purchased item for which we are responsible, we shall be entitled at our discretion to remedy the defect or to make a replacement delivery. In the event of rectification of the defect, we shall bear all expenses required for the purpose of rectification of the defect, in particular the material, transport and labour costs, insofar as they are not increased by the fact that the object of sale has been taken to a place other than the place of performance.
- If the rectification of defects/replacement delivery fails, the customer shall be entitled, at his option, to demand rescission (rescission of the contract) or a corresponding reduction in the purchase price (reduction).
- We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall be liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, our obligation to pay damages shall be limited to the foreseeable damage typical for the contract.
- Liability for culpable injury to life, limb or health shall remain unaffected. This also applies to mandatory liability under the Product Liability Act.
- Unless otherwise regulated above, liability is excluded.
- The limitation period for claims based on defects is one year, calculated from the transfer of risk.
Art. 5 Prices and terms of payment
- Our price calculation is based on the price lists valid at the time of conclusion of the contract and/or supplements to these price lists, unless otherwise expressly agreed. Unless otherwise agreed, our prices are quoted ex works in 24576 Bad Bramstedt (Germany) excluding transport, packaging, insurance, cash on delivery charges, or other ancillary costs in EURO.
- Prices in the order confirmations shall apply exclusively to the specifications regarding dimensions and execution listed therein. In the event of deviations from the order or changes in execution or additional services caused and executed by the purchaser, we shall be entitled to charge reasonable additional prices.
- We reserve the right to reasonably change our prices if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or increases in material prices. We will provide verification of these to the customer upon request.
- The legal value added tax is not included in our prices. It will be shown separately in the invoice at the statutory rate on the day of invoicing.
- The deduction of a discount requires a special written agreement.
- Unless otherwise stated in the order confirmation, the purchase price shall be paid net (without deduction) in advance; if we exceptionally make advance payment with our delivery, our invoices shall be due for payment without deduction within 8 days of the invoice date. If the customer is in default of payment, we shall be entitled to demand default interest in the amount of 8 per cent points above the base rate per annum. If we are able to prove a higher damage caused by default, we shall be entitled to assert this. However, the customer shall be entitled to prove to us that we have incurred no or substantially less damage as a result of the default in payment.
- We only accept cheques and bills of exchange based on a special written agreement and on account of payment.
- The customer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed, or have been acknowledged by us. The customer is also not entitled to any right of retention because of disputed counterclaims.
- For the timeliness of the owed payment, it always depends on the receipt of payment by us.
- We are entitled to offset payments first against the customer's older debts, despite other stipulations of the customer, whereby in this case we must inform the customer immediately of the type of offsetting that has taken place. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the principal performance.
Art. 6 Delivery/shipment, packaging and passing of risk
- Unless otherwise agreed in writing in individual cases, delivery shall be ex works, i.e. from 24576 Bad Bramstedt.
- If the customer is an entrepreneur, the risk shall pass to the customer as soon as the goods leave the factory or are made available to the customer or to a carrier commissioned by the customer (including a commissioned carrier) in the supplying factory; this shall also apply if we have agreed to shipment "carriage paid". If the purchaser is a consumer, the risk shall not pass to the purchaser until the goods have been handed over, even in the case of an agreed sale to destination.
- If dispatch or collection of the goods is delayed or impossible as a result of conduct attributable to the customer, the risk shall pass to the customer upon notification that the goods are ready for dispatch.
- Goods reported ready for dispatch in accordance with the contract must be called off immediately; otherwise, we are entitled to dispatch them at the expense and risk of the customer at our discretion, or to store them at our discretion and invoice them immediately.
- In the absence of special instructions from the customer, we shall determine the carrier, route and means of shipment without assuming any obligation for the most inexpensive means of shipment.
- We shall provide special packaging protection, transport and transport aids as well as transport insurance only at the express written request of the customer; the costs incurred shall be borne by the customer.
- The customer must ensure that the ordered goods are accepted at the specified delivery address at the usual delivery times, in particular at Deutsche Post AG. Otherwise, in addition to further shipping costs, the customer shall bear the costs of the increased processing costs incurred by us, which shall be agreed at a flat rate of €10; this shall not affect the customer's right to prove lower damages.
- In the case of visible transport damage, the customer must have the damage determined upon receipt of the goods in such a way that claims for damages against the transport company are possible based on these determinations. If the customer does not sufficiently fulfil this obligation, he shall bear all resulting consequences exclusively.
- The customer must ensure that he himself or, if applicable, the recipient of the goods is immediately convinced of the faultless condition of the goods after delivery. In relation to the entrepreneur, the statutory provisions of the inspection and complaint obligations shall remain unaffected.
- Promised delivery dates are approximate dates. When delivering and/or installing our frame systems, we assume no liability whatsoever for the statics, the load dissipation, the fastening or the substrate. Whether the technical requirements for the assembly of the ordered product are met is the sole responsibility of the customer. If our failure to comply with deadlines or delivery dates is due to force majeure (e.g. war, strike, lockout, natural disasters, disruptions in the supply of raw materials, materials and energy, fire, operational, production and traffic disruptions, unforeseeable transport problems, machine defects for which we are not responsible, accidents and the like, even if they occur at our suppliers, their sub-suppliers or our subcontractors, etc.), you entitle us to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
- We shall be liable in accordance with the statutory provisions if the delay in delivery is due to a wilful or grossly negligent breach of contract for which we are responsible, including wilful intent and gross negligence on the part of our representatives and vicarious agents. In other cases of delay in delivery, our liability for damages in addition to performance shall be limited to 5% and for damages instead of performance to 10% of the value of the delivery. Further claims of the customer are excluded. The following limitation of liability does not apply to liability for injury to life, limb or health. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
- Non-binding delivery dates/periods are also always subject to the timely clarification of all details of the order, in particular the clarification of all technical questions and the provision of necessary documents and data for us.
- We are entitled to partial deliveries and partial services at any time. The purchaser cannot derive any rights with regard to the remaining partial deliveries or partial services from the delay of partial deliveries or partial services.
- With regard to the punctual transport, the duration of transport and the arrival of the goods, we do not assume any guarantee whatsoever; in this respect, our information is given without exception to the best of our knowledge, but is non-binding.
- In addition, the provisions of the limitation of liability pursuant to Article 7 of these General Terms and Conditions shall apply.
Art. 7 Total liability and limitations of liability
- Any further liability for damages than provided for in Article 4 is excluded – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage pursuant to Art. 823 BGB (German Civil Code).
- The limitation in accordance with Section 1 above shall also apply insofar as the customer demands reimbursement of useless expenses instead of a claim for damages instead of performance.
- Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability of our employees, workers, co-workers, representatives and vicarious agents.
- Claims for damages and reimbursement of expenses on the part of the customer (hereinafter: claims for damages), irrespective of the legal basis, in particular due to the breach of duties arising from an obligation and tort, are excluded.
- This shall not apply in cases where a guarantee or a procurement risk has been assumed.
- Furthermore, this shall not apply if claims are asserted against us in accordance with the Product Liability Act, in cases of wilful or grossly negligent conduct on our part or on the part of our vicarious agents, in cases of injury to life, limb or health or in cases of breach of essential contractual obligations.
- The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable, contract-typical, direct average damage according to the type of delivery or service, unless there is intent or gross negligence or liability due to injury to life, body or health.
Art. 8 Advertising, our copyrights, third-party rights
- We are entitled to retain specimen copies of the orders as quality samples and to use these anonymously within the context of advertising.
- Our deliveries and services do not include the transfer of copyrights. Accordingly, we reserve all proprietary rights and copyrights to our graphic designs, image and text marks, layouts, etc. The transfer of these rights requires a separate written agreement.
- The customer must ensure that no third-party rights, in particular copyrights, are infringed by the execution of his order. Otherwise, he shall indemnify us against all claims of third parties asserting rights against us from the order in question.
Art. 9 Retention of title
- We reserve title to the object of sale until receipt of all payments arising from the business relationship with the customer. In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the object of sale by us always constitutes a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of such sale shall be set off against the customer's liabilities - less reasonable selling costs.
- The customer is obliged to treat the purchased item with care; in particular, he is obliged to sufficiently insure it at his own expense at replacement value against fire, water and theft. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
- In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing so that we can file a suit in accordance with Article 771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to Article 771 ZPO, the customer shall be liable for the loss incurred by us.
- The customer is entitled to resell the object of purchase in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of insolvency or composition proceedings and has not suspended payments. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The processing or transformation of the object of sale by the customer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
- If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created with us.
- The customer also assigns to us the claim to secure our claim against him that arises towards a third party due to the relationship between the object of sale and a property.
- We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realised value of our securities exceeds the claims to be secured by more than 20%. The choice of the securities to be released shall be incumbent upon us.
Art. 10 Right of revocation
- The customer, insofar as they are a consumer in accordance with Article 355 BGB, may revoke his contractual declaration within 14 days in writing without stating the reasons (e.g. letter, fax, and email) or – if the goods are handed over to him before the expiry of the deadline – by returning the goods. The period begins after receipt of this written instruction, but not prior to receipt of the goods by the recipient (in the case of recurring deliveries of similar goods, not before receipt of the first partial delivery), and also not before fulfilment of our information obligations under Article 246 Sec 2 in conjunction with Sec. 1, Nos 1 and 2 EGBGB (Introductory Act to the German Civil Code) and our obligations under Article 312e Sec. 1 No. 1 BGB in conjunction with Article 246 Article 3 EGBGB. The timely dispatch of the revocation or the goods themselves is sufficient to comply with the revocation period. The revocation is to be addressed to:
Erler+Pless GmbH, Holstenhofweg 43, 22043 Hamburg
- 2. In the event of an effective revocation, the services received by both parties shall be returned and any benefits derived (e.g. interest) shall be released. If the customer is unable to return the performance received to us in whole or in part or can only return it in a deteriorated condition, the customer must pay us compensation in this respect if necessary. This does not apply to the surrender of goods if the deterioration of the goods is exclusively due to their inspection – as would have been possible in a retail shop, for example. In all other respects, the customer can avoid the obligation to pay compensation for any deterioration caused by the intended use of the goods by not using the goods as if they were his property and by refraining from doing anything that could impair their value. Items that can be sent by parcel post are to be returned at our risk. The customer shall bear the costs of the return shipment if the delivered goods correspond to those ordered and if the price of the goods to be returned does not exceed an amount of 40 euros, or if the customer has not yet paid the consideration or a contractually agreed partial payment for a higher price of the goods at the time of revocation. Otherwise, the return is free of charge for the customer. Items that cannot be sent as parcels will be collected from the customer. Obligations to refund payments must be fulfilled within 30 days. The period begins for the customer with the dispatch of his declaration of revocation or the goods, for us with their receipt.
- In the case of a service, the right of revocation expires prematurely if the contract is completely fulfilled by the customer and us at the express request of the customer before the customer has exercised his right of revocation.
–End of the right of revocation–
- The right of revocation does not apply to distance contracts for the delivery of goods that are manufactured according to customer specifications or clearly tailored to personal needs, or which are not suitable for return due to their nature.
Art. 11 Applicable law, place of jurisdiction / Place of performance
- If the customer is a merchant within the meaning of the German Commercial Code, our place of business shall be the place of jurisdiction. However, we are also entitled to sue the customer at his place of residence.
- Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
- The law of the Federal Republic of Germany shall apply. The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
- 4. Should individual provisions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
Fon: +49 40 24 84 48-0
Fax: +49 40 24 84 48-40
Registernr.: HRB 41740