ERO General Terms and Conditions (as of: March 2020)

I. Scope

  1. All offers, sales, deliveries of goods and provision of services by ERO GmbH (hereinafter referred to as “ERO”) are carried out exclusively on the basis of these General Terms and Conditions. Contradictory customer conditions or those that deviate from the present ones are not recognized. This also applies where ERO carries out a shipment to a customer without reservation while aware of diverging or contrary conditions of the customer. Deviations from these General Terms and Conditions shall only take effect if ERO acknowledges them in writing or text form.
  2. These General Sales and Delivery Conditions also apply without any special further agreement to all future business transactions of the same kind with the same customer.
  3. Ancillary agreements, subsequent changes to the agreement, deviations from these sales conditions and/or warranties shall only take effect if they are confirmed by ERO in writing.
  4. Legally relevant statements and notifications by the customer relating to the agreement are to be provided in text form (e.g., letter, e-mail, fax).
  5. References to the validity of statutory regulations are only used for clarification. Thus, statutory regulations apply even without clarification of this kind, to the extent that they are not directly altered or expressly excluded in these General Terms and Conditions.
  6. These General Terms and Conditions only apply if the custome is an entrepreneur (German Civil Code § 14), a legal entity under public law or a special fund under public law.

II. Entering into the contract, confidentiality, rights to documents

  1. Offers made by ERO are not binding. This also applies if with the offer ERO has provided the customer with catalogs, technical documentation, other product descriptions or documents, irrespective of in what form. Information provided by ERO which is based on an obvious error, namely a typographical or mathematical error, is not binding on ERO. Instead, the obviously intended declaration applies.
  2. ERO reserves all title and copyrights and other rights of use to all illustrations, drawings, calculations and other documents. They shall not be made available to third parties, unless the customer obtains explicit written from ERO consent before passing them on.
  3. To the extent that ERO makes confidential information available to the customer as part of the conclusion or conduct of a contract, the customer undertakes to maintain confidentiality concerning this information, not to make it accessible to third parties, and to prevent any unauthorized access by third parties, not to reproduce the information itself or have it reproduced by third parties, and to use or exploit such information only in order to carry out the contract entered into with ERO. Staff members and salaried employees of the customer who will come into contact with confidential information are to be appropriately sworn to secrecy.
  4. Drawings, illustrations, dimensions, weights and other services are to be understood only as approximations and do not represent exact information about quality unless they are expressly designated as binding.
  5. Ordering of goods by the buyer is a binding offer to enter into a contract. To the extent that the order does not result in anything else, ERO is entitled to accept the offer to enter into a contract within four weeks of its receipt at ERO by a declaration in writing or text form or by shipping the goods to the customer. The customer is bound by the offer for this period.
  6. The contract shall be concluded subject to prompt delivery of the appropriate goods by sub-contractors. This applies only if ERO is not responsible for the non-delivery, particularly in the case of an agreement on adequate coverage with the sub-contractor. The customer shall be informed about the unavailability of the service without undue delay. Any payments made shall be reimbursed without undue delay.

III. Delivery deadlines and delays in delivery

  1. In order to be binding, set dates and/or delivery deadlines require confirmation by ERO in writing or text form. Without such confirmation all delivery dates or deadlines are non-binding. Specification of specific delivery dates and deadlines by ERO is always subject to the prompt delivery of the appropriate goods to ERO by sub-contractors and manufacturers. This is also subject to the timely clarification of all details related to the order and timely completion of any obligations of the customer.
  2. Delivery deadlines are considered to have been met upon the timely notification of readiness to dispatch if the goods cannot be shipped in time through no fault of ERO. Delivery dates are considered to have been met upon notification of readiness for dispatch within the set period.
  3. To the extent that ERO cannot meet delivery deadlines for reasons beyond its control, ERO will inform the customer without undue delay and at the same time provide notification of the new estimated time for delivery. Should the service also not be available within the new delivery deadline, ERO is entitled to withdraw from the contract in whole or in part. Any payment already made by the customer shall be reimbursed by ERO without undue delay. An instance of non-availability of the service in this sense applies in particular when a sub-contractor does not deliver goods in a timely manner, even though ERO has entered into an agreement for adequate coverage with the sub-contractor, neither ERO nor its subcontractor is at fault, or in individual cases ERO is not required to procure goods.
  4. The occurrence of a delay in delivery by ERO is determined by the statutory regulations. Should ERO culpably exceed a time limit, a reminder by the customer is required in any event, even in cases when binding periods of delivery or delivery deadlines have been set.
  5. The rights of the customer pursuant to item IX of these General Terms and Conditions as well as the statutory rights of ERO, in particular when the obligation to provide a service is excluded (e.g., due to the impossibility or unacceptability of the service and/ or supplementary service), remain unaffected.
  6. In cases of delays in delivery or performance due to force majeure or due to other unforeseeable events, which make delivery by ERO considerably more difficult or impossible and lie outside ERO’s control (this includes in particular war, war-like events, directives by authorities, non-issue of export, import and transit permits, national measures to limit trade, strikes, lock-outs and other operational disruptions of all kinds, traffic disruptions, natural events, changes and additions after conclusion of the contract, additional requirements or conditions by government agencies, regardless of whether these involve ERO, its suppliers or their sub-contractors), deadlines for delivery or provision of services are extended for the course of the disruption plus an appropriate preparatory period. If the deliveries of goods and provision (or performance) of services are unreasonable for ERO in consideration of the obstacle to the service and the customer’s interest in the service, ERO can refuse to provide the service; the same applies to the customer if the further execution of the contract is not reasonable. If ERO wishes to exercise its right, it must inform the customer without undue delay after becoming aware of the extent of the event.
  7. The customer can only withdraw from the contract within the framework of the statutory provisions if ERO is responsible for the delay in delivery. A right of withdrawal basically extends only to that part of the contract that has not yet been fulfilled; otherwise it only applies if partial deliveries of goods or part performance already rendered are of no use to the customer because of the delay. At ERO’s request, the customer is obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery and/or demand compensation instead of provision of the service, or insist on delivery.

IV. Delivery, passing of risk, default in acceptance, lump-sum damage payments

  1. Delivery is made ex warehouse, which is also the place of delivery and any subsequent performance. At the request and expense of the customer, goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, ERO is entitled to determine the type of shipment (e.g., carrier, shipping route, packaging). The customer assumes ERO’s obligations under the packaging regulation and releases ERO from responsibility to that extent.
  2. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay in delivery, passes to the customer upon delivery of the goods to the forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. If acceptance has been agreed upon, this is decisive for the passing of risk. Otherwise, the risk of accidental loss and accidental deterioration of the goods passes to the customer.
  3. The same applies to handover or acceptance if the customer defaults in taking delivery.
  4. If the customer delays acceptance or fails to cooperate or if the delivery by ERO is delayed for other reasons for which the customer is responsible, ERO is entitled to demand compensation for the resulting damages, including additional expenses (e.g., storage costs). For this purpose, ERO calculates damage costs at 0.5% of the net price of the goods per calendar week of default (in acceptance) by the customer, however at most 5% of the total value of the goods shall be calculated for damages. Proof of higher damages and the legal claims of ERO (in particular, compensation for additional expenses, reasonable compensation, withdrawal) remain unaffected. The customer reserves the right to provide evidence that ERO has incurred no damage or damage that is significantly less than the above lump sum.
  5. If ERO withdraws from the contract in the event of the customer defaulting in taking delivery of the goods in accordance with the statutory provisions, ERO is entitled to claim lump sum damages in the amount of 10% of the purchase price. The customer reserves the right to provide evidence that ERO has incurred no damage or damage that is significantly less than the above lump sum.

V. Prices and terms of payment

  1. Unless otherwise agreed in individual cases, ERO’s current prices at the time the contract is concluded, ex warehouse, plus statutory sales tax apply.
  2. In the case of sale by delivery to a place other than the place of performance, the customer bears the transport costs ex warehouse and the costs of any transport insurance the customer may require. The customer bears any customs duties, fees, taxes and other public charges.
  3. The purchase price is due and payable within 10 days of invoice and delivery or acceptance of the goods. Payment is deemed to have been made when ERO has access to the funds. Bills of exchange and checks are only accepted for processing, and only count as payment once they have been finally cashed. They will be accepted without obligation to cash them or raise protests in a timely manner. ERO is entitled at any time only to conclude a contract, even in the context of an ongoing business relationship, if the customer makes an advance payment or a down payment at ERO’s choice. ERO declares any corresponding reservations at the latest upon confirmation of receipt of the order.
  4. The customer is in default when the above-mentioned payment term lapses. During delays, interest charges shall be applied to the purchase price at the applicable statutory rate of interest. The right to claim further damages caused by payment delays and the flat-rate sum for default remains unaffected. The right to charge merchants commercial maturity interest (pursuant to German Commercial Code § 353) remains unaffected.
  5. If, after the conclusion of the contract, ERO’s claim to the purchase price is jeopardized by the customer’s inability to fulfill its obligations, ERO is entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (German Civil Code § 321). In the case of contracts for the manufacture of unacceptable items (job production), ERO can declare its withdrawal from the contract immediately; the statutory regulations concerning the dispensability of fixing a time limit remain unaffected.

VI. Use and quality of the goods, export

    1. The customer alone is responsible for compliance with legal and official regulations and accident prevention and insurance requirements governing utilization of the goods/delivery.
    2. When exporting goods that have been purchased, the customer is obliged to obtain all documents required for export (e.g., export and customs permits, etc.) at its own expense and in good time. ERO is not liable for the lawfulness of the exportation of the goods or their compliance with the legal and technical regulations of the country of importation.
    3. The goods are intended for use in the Federal Republic of Germany and are designed in accordance with this. ERO is not liable for ensuring that the goods meet the technical norms of an importing country outside the EU.

    VII. Retention of title

    1. The goods remain the property of ERO until all current and future claims arising from the purchase contract and any ongoing business relationship (referred to as “secured claims”) have been settled.
    2. Goods subject to retention of title may neither be pledged to third parties nor offered as collateral or otherwise transferred or altered before secured claims have been paid in full. Deviations from these conditions apply only with the prior written approval of ERO and in cases in accordance with VII. 5 of the General Terms and Conditions. The customer may use the goods subject to retention of title for their designated purpose. The customer must treat goods subject to retention of title with care. It must insure them at its own expense against damage or loss due to fire, water or theft for an amount commensurate with their replacement value. If maintenance and inspection work become necessary, the customer must carry it out at its own expense and in timely manner.
    3. The customer must notify ERO promptly in text form without undue delay if an application is made to open insolvency proceedings regarding the customer’s assets or if third-party access (e.g., attachments) to goods belonging to the ERO occurs. The customer must notify the third party without undue delay of ERO’s retention of title and provide evidence of this to ERO.
    4. If the customer behaves contrary to the contract, in particular if the purchase price is not paid, ERO is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand return of the goods in accordance with the retention of title. A demand for surrender of goods does not automatically involve a declaration of withdrawal; instead, ERO is only entitled to demand return of the goods and to reserve the right to withdraw. If the customer does not pay the purchase price when it is due, ERO may only assert these rights if the customer has previously been unsuccessfully set a reasonable deadline for payment or if the statutory provisions allow dispensation with such a deadline.
    5. Until further notice, the customer is entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, the following provisions a) – c) also apply: a) Retention of title extends to products resulting from the processing, mixing or combining of our goods at their full value, and ERO is regarded as the manufacturer. If after processing, mixing or combining with third party goods their property right remains, ERO acquires co-ownership in the ratio of the invoiced values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title. b) The customer assigns to ERO claims against third parties arising from the resale of goods or product as a whole or in the proportion of any co-ownership share of ERO, in accordance with the preceding paragraph. As a precaution, the customer assigns its claims in relation to goods subject to retention of title which arise for any legal reason against its customers or third parties (in particular claims arising from improper behavior and claims for insurance benefits) to ERO in their full amount. ERO accepts these assignments of claims. The customer’s obligations specified in item 2, 3 also apply in regard to assigned claims. c) In addition to ERO, the customer remains authorized to enforce claims. ERO undertakes not to enforce claims as long as the customer meets its payment obligations, there is no reduction in its ability to meet its obligations, and ERO does not enforce retention of title by exercising a right as specified in item 4. ERO can request that the customer gives notification to ERO of the assigned claims and their debtors, provide all the information necessary for collection, submit the associated documents, and notify the debtors (third parties) of the assignment. In this case, ERO is also entitled to revoke the customer’s authority to resell and process the goods subject to retention of title.
    6. If the realizable value of the collateral exceeds ERO’s demands by more than 10%, upon request by the customer ERO will release collateral of its own choice until the collateral is at most 110%.

    VIII. Customer claims for defects

    1. The rights of the customer in the event of material and legal defects (including wrong delivery and short delivery, as well as improper assembly or defective assembly instructions), the statutory provisions apply, unless otherwise specified below. In all cases, the statutory special provisions regarding final delivery of the goods to a consumer (supplier recourse according to German Civil Code §§ 478, 479) remain unaffected.
    2. Liability for defects is based on any agreement concerning the quality of the goods. If the quality of the goods has not been agreed upon, statutory regulations shall be applied to determine whether a defect is present or not (German Civil Code § 434(1)2 and 3). ERO assumes no liability for public statements made by a manufacturer other than ERO or by other third parties.
    3. If the customer is a merchant, the customer’s claims for defects require that the customer has complied with its statutory inspection obligation and requirement to make a complaint in respect of a defect immediately on receipt of the goods (German Commercial Code §§ 377, 381). If a defect becomes apparent to the merchant at the time of delivery or inspection or at a later point in time, ERO must be notified without undue delay. If the customer fails to properly inspect and/or report defects, ERO’s liability for defects that are not reported, are not reported in a timely manner or are reported incorrectly is excluded in accordance with the statutory provisions.
    4. If the delivered item is defective, ERO can choose whether to repair or replace it. ERO’s right under the statutory requirements to refuse to remedy defects remains unaffected.
    5. ERO is entitled to make remedying of defects dependent on the customer paying the purchase price that is due. However, the customer is entitled to retain a portion of the purchase price commensurate with the defect.
    6. The customer must give ERO the time and opportunity necessary for remedying of defects, in particular, handing over the goods for the purpose of inspection or making them accessible, at ERO’s choice. In the case of a replacement delivery, the customer must return the defective item to ERO in accordance with the statutory provisions. Unless ERO was originally obliged to carry out installation, remedying defects does not include removal or re-installation of the defective item.
    7. Expenses required for inspection and remediation, in particular for transport, travel, labor and materials (but not removal and installation costs) are borne by ERO if there really is a defect. Otherwise, ERO can demand from the customer that costs incurred as a result of an unjustified request to remedy a defect be reimbursed, unless the customer was not aware of the absence of any defect.
    8. If the attempt to remedy a defect fails, or a reasonable period of time set by the customer for subsequent performance has expired without success, or subsequent performance can be dispensed with in accordance with the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. In the event of a minor defect, there is no right of withdrawal.
    9. In the event of defects too, the customer’s right to damages or reimbursement of futile expenses only exist in accordance with the provisions in item IX, and are otherwise excluded.

    IX. Other liability

    1. ERO is liable for damages – regardless of the legal reason – if ERO, its legal representatives or subcontractors caused them intentionally or through gross negligence. In the event of simple negligence, ERO or its representatives or subcontractors or persons otherwise employed by it, whose culpability ERO is responsible for according to the statutory provisions, is only liable a) for damage to life, limb or health, b) for damage from a not insignificant breach of a substantial contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and whose observance the contractual partner regularly counts on and has a right to count on), in particular for damage from the culpable violation of the obligation to deliver the goods free of material and legal defects as well as the transfer of ownership; in this case, however, ERO’s liability is limited to compensation for foreseeable, typical damage. The above restrictions also apply to the personal liability of legal representatives, subcontractors and other employees of ERO.
    2. The above limitations of liability do not apply insofar as ERO malic ously conceals a defect or provides a guarantee for the quality of the goods and for claims under the Product Liability Act. For internal compensation according to Product Liability Act § 5 sentence
      2, the regulations specified above remain in force.
    3. The customer can only withdraw or cancel due to a breach of duty that is not a defect if ERO is responsible for the breach of duty. Requirements and consequences in law also apply.
    4. The above provisions do not provide for a change in the burden of proof to the detriment of the customer.

    X. Right of retention and set-off, limitation period

    1. The customer is only entitled to set-off or retention rights to the extent that its claim has been legally established and recognized or is undisputed. The customer is only authorized to exercise a right of retention if its claim is based on the same contractual relationship.
    2. ERO is entitled, despite contrary specifications by the customer, to set off payments against the customer’s older debts. If costs and interest have already been incurred, ERO is entitled to offset payment first against the costs, then against the interest and finally against the principal performance. All claims due to ERO or to its affiliates by customers can be offset by ERO against any claims that the customer or the customer’s affiliates have against ERO or its affiliates.
    3. Notwithstanding German Civil Code § 438 para. 1 no. 3, the general limitation period for claims arising from material and legal defects is one year from delivery. If an acceptance has been agreed, the limitation period begins with the acceptance.
    4. However, if the goods are a building or an object that has been used as part of a building in accordance with its normal use and has
      caused the building’s defectiveness, the five-year limitation period in accordance with German Civil Code § 438 para. 1 no. 2 applies. Other statutory special provisions remain unaffected (German Civil Code §§ 438 para. 1 no. 1, para. 3, §§ 444, 479).
    5. The above limitation periods also apply to contractual and noncontractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation period leads to a shorter limitation period in an individual case. Claims for damages by the customer in accordance with item IX (1) sentence 1 and 2 (a) as well as under the Product Liability Act are subject to the statute of limitations exclusively according to the legal regulations.

    XI. Termination

    A right of termination by the customer (especially according to German Civil Code §§ 650, 649) is excluded. If ERO is required to deliver unacceptable movable goods which must be manufactured or produced, the customer is only entitled to terminate for good reason. The same applies if a contract for works and services has been entered into.

    XII. Supplementary provisions

    1. The only applicable law shall be German law, with the exclusion of laws regarding the international purchase of movables, even when the company headquarters of the customer is outside Germany.
    2. The place of performance of all reciprocal deliveries of goods and provision of services is the headquarters of ERO.
    3. If the customer is a merchant in the sense of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive and also international venue for any present-day and future immediate and derivative claims resulting from the business relationship including claims resulting from bills of exchange and checks, shall be the headquarters of ERO in Simmern, Germany. The same shall apply if the customer is an entrepreneur in the sense of German Civil Code § 14. However, ERO is also entitled in all cases to bring an action at the place of performance of supply obligation in accordance with these General Terms and Conditions or with an individual agreement having precedence over the General Terms and Conditions or in the general place of jurisdiction of the customer.
    4. The nullity of one or more of the articles shall not affect the validity of the remaining articles. Should an article of these General Terms and Conditions be or become void, or should something appear to be missing, an adequate provision shall then apply, which should – within the provisions of the law – come as close as possible to the purpose of the parties or to what the parties’ purpose would have been, if they had considered that point.