§ 1 Scope of application

1. The following General Terms and Conditions apply to all contracts concluded between Erke Engineering GmbH, represented by the Managing Director Dipl.-Ing. Hasan Kulle, Petuelring 112, 80809 Munich, Germany, and a third party (hereinafter referred to as ‘Customer’).

2. Unless expressly agreed otherwise in writing, these General Terms and Conditions (hereinafter ‘GTC’) shall apply to all business relationships between us, Erke Engineering GmbH, and our customers in connection with the sale of the physical digital signage solutions offered by us (hereinafter ‘goods’), the rental of software offered by us (hereinafter ‘software’) and the provision of the services listed in these GTC. The GTC shall also apply if no separate reference is made to them in the event of adjustments to our offers, in whatever form. Verbal collateral agreements are not made. Amendments or deviating provisions to these GTC must be expressly agreed and must be made in writing.

3. By placing orders and accepting goods, the customer recognises these General Terms and Conditions of Sale, Delivery and Payment of Erke Engineering GmbH.

4. These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). Erke Engineering GmbH shall only recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale if Erke Engineering GmbH expressly agrees to their validity in writing.

 

§ 2 Offer and conclusion of contract

1. The offers of Erke Engineering GmbH are subject to change and non-binding. Offers can only be accepted in accordance with § 147 Para. 2 BGB (German Civil Code) up to the time at which the applicant can expect to receive the response under normal circumstances. Declarations of acceptance and all confirmations require our written or telex confirmation to be legally effective. The same applies to supplements, amendments or ancillary agreements. A contract is only concluded with our written order confirmation, but at the latest upon acceptance of the delivery by the customer.

2. Due to the continuous technical development and improvement of our goods, software and services, Erke Engineering GmbH reserves the right to make changes in design and execution compared to the information provided in our offers, provided that these changes are only insignificant and guarantee at least the same quality of our goods and services; this applies in particular if such changes serve to maintain the ability to deliver.

3. Drawings, illustrations, dimensions, weights or other types of performance are only binding if they have been expressly agreed in writing.

4. If items are manufactured in accordance with the customer’s instructions (order work), the customer shall be solely responsible for ensuring that the manufacture does not infringe any patent or design protection rights etc. of third parties.

5. Offers of a special nature, which are connected with planning and development work, remain the intellectual property of Erke Engineering GmbH and may not be made accessible to third parties either in whole or in part. Drawings and other documents belonging to offers must be returned to Erke Engineering GmbH immediately on request if the order is not placed, without the customer making copies of them.

6. The language available for the conclusion of the contract is German.

 

§ 3 Delivery

1. Delivery periods and dates communicated by us shall only be deemed to have been agreed as binding if they have been expressly confirmed by us in writing. Otherwise, the deadlines and dates communicated shall only be deemed to be approximate delivery dates. The delivery period begins at the earliest with our order confirmation, but not before the customer has provided the necessary information and handed over the required documents. The delivery period shall also be extended by the period during which the customer itself is in default with the fulfilment of its contractual obligations.

2. All agreed delivery periods are subject to correct and punctual delivery to us, provided and insofar as we are not responsible for the non-delivery. In the event of non-availability or only partial availability, Erke Engineering GmbH shall inform the customer immediately. In the event of delays in delivery due to force majeure or other operational disruptions for which we are not responsible, the agreed delivery period shall be extended to a reasonable extent.

3. Partial deliveries are permitted to an extent that is reasonable for the customer, unless expressly agreed otherwise in writing.

4. The customer is obliged to accept the goods ready for despatch.

 

§ 4 Transfer of risk on despatch

1. The dispatch of the ordered goods shall always be at the expense and risk of the customer ex warehouse of Erke Engineering GmbH or ex warehouse of the manufacturer of the goods of Erke Engineering GmbH. If dispatch becomes impossible through no fault of Erke Engineering GmbH, the risk shall pass to the customer upon notification of readiness for dispatch. The risk for returned goods shall be borne by the customer until receipt by Erke Engineering GmbH, unless the reason for the return is the fault of Erke Engineering GmbH.

2. We are free to choose the mode of dispatch, unless the customer has given other express instructions. Erke Engineering GmbH shall only be liable for a fault in the selection of the carrier in the event of gross negligence.

3. Erke Engineering GmbH may, at its own discretion, take out transport insurance for the customer’s account. There is only an obligation to do so if the customer gives written instructions.

 

§ 5 Prices and terms of payment

1. The prices stated in our order confirmation plus the respective statutory VAT shall apply. Discounts may only be deducted if expressly stated in the respective offer or invoice.

2. Service expenses for installation and assembly of the goods shall be invoiced separately.

3. Unless expressly agreed otherwise in writing, a down payment of approximately 50% of the total amount shall be made upon confirmation of the order. The amount is due immediately upon receipt of the order confirmation. A bank transfer confirmation shall be deemed payment. The remaining amount will be invoiced to Erke Engineering GmbH after complete fulfilment of the order.

 

§ 6 Term, cancellation and payment for the software

1. The contract for the software begins on the date specified in the agreement and is automatically extended by three months unless one of the parties cancels it beforehand.

2. Erke Engineering GmbH shall create an account for the customer through which the customer will be able to change its content in the future.

3. Erke Engineering GmbH reserves the right to store the access data for account use in order to have access to the customer’s account and files in the event of a malfunction.

4. A contract concluded for an indefinite period may be terminated by either party without notice to the end of a calendar month and must be in writing. The right to extraordinary cancellation of the contract for good cause remains unaffected for both parties.

5. The invoice for payment for the use of the software shall always be invoiced to the customer at the beginning of the usage period. From this point onwards, the customer has access to his account and the corresponding usage for a further three months.

 

§ 7 Right of retention and retention of title

1. The customer is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

2. Erke Engineering GmbH retains title to the goods and the use of the software until all claims arising from the current business relationship have been settled in full. Prior to the transfer of ownership of the reserved goods, pledging or transfer by way of security is not permitted.

3. The customer is obliged to treat the purchased item or goods with care as long as ownership has not yet been transferred to him.

4. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer acts in breach of contract.

 

§ 8 Warranty for goods

1. The customer is aware that our prices correspond to the following warranty conditions.

2. Erke Engineering GmbH’s warranty obligation is limited, at its discretion, to replacement delivery or rectification within the scope of the manufacturer’s warranty or guarantee. When using these general terms and conditions in commercial transactions, Erke Engineering GmbH is also entitled to limit the warranty to the assignment of its own warranty claims against manufacturers, suppliers or authors, unless the defect has its cause in the area of responsibility of Erke Engineering GmbH. If Erke Engineering GmbH fails to rectify the defect or to satisfy the assigned warranty claims, the customer may, at his discretion, demand a reduction in the purchase price or cancellation of the contract. Any further claim by the customer for compensation for direct or indirect damage is excluded, unless the damage is attributable to a grossly negligent breach of contract by Erke Engineering GmbH.

 

§ 9 Software warranty

1. The customer is aware that our prices are subject to the following warranty conditions.

2. Each customer is solely responsible for deciding whether software ordered from Erke Engineering GmbH is executable on a computer system intended for use with this software.

3. Erke Engineering GmbH’s warranty obligation is limited, at its discretion, to replacement delivery or rectification within the scope of the manufacturer’s warranty or guarantee. When using these general terms and conditions in commercial transactions, Erke Engineering GmbH is also entitled to limit the warranty to the assignment of its own warranty claims against manufacturers, suppliers or authors, unless the defect has its cause in the area of responsibility of Erke Engineering GmbH. If Erke Engineering GmbH fails to rectify the defect or to satisfy the assigned warranty claims, the customer may, at his discretion, demand a reduction in the purchase price or cancellation of the contract. Any further claim by the customer for compensation for direct or indirect damage is excluded, unless the damage is attributable to a grossly negligent breach of contract by Erke Engineering GmbH.

§ 10 Copyrights

1. Insofar as the software is included in the scope of delivery, it is provided to the customer solely for one-time self-installation. A multiple right of use requires a special written agreement. In the event of a breach of this agreement, the customer shall be liable in full for any resulting damage.

 

§ 11 Exemption

1. It is the customer’s responsibility to find out about legal regulations and standards regarding the use of digital signage solutions. This also includes municipal regulations and ordinances issued by the city council. The customer shall indemnify Erke Engineering GmbH against claims by third parties relating to current or future statutory regulations and standards as well as municipal regulations and standards and ordinances on the part of the city council.

2. The customer shall indemnify Erke Engineering GmbH against claims by third parties that are based on unlawful use of the goods provided by us, including the software provided, or that arise from data protection, copyright or other legal disputes caused by the customer that are associated with such use. This also includes the reimbursement of the costs of necessary legal representation.

3. Erke Engineering GmbH has no influence on content that the customer himself enters into the systems provided by us and possibly broadcasts via these. The customer therefore bears full responsibility for their legal admissibility. A separate contract must be concluded with the respective third-party provider in order to broadcast various content, such as a pay TV offer. If contractually agreed, we provide services for the goods provided by us, but not for the services agreed between the third-party provider and the customer. The customer hereby indemnifies us against any claims – in particular from infringements of copyright or competition law – which are asserted against us by a third party due to unlawful use of the goods provided by us by the customer. This also includes the reimbursement of the costs of necessary legal representation.

 

§ 12 Prohibition of assignment

1. The assignment of claims against us to third parties is excluded unless we expressly agree to the assignment.

 

§ 13 Final provisions

1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

2. The exclusive place of jurisdiction for disputes is Munich.

3. All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.

4. Amendments to these terms and conditions may only be made in writing. The written form requirement can likewise only be waived in writing.

5. If a provision of these terms and conditions is invalid in whole or in part, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid provision, taking into account its economic content.

 

Valid from 01.05.2022