General Terms and Conditions
MODULE A: GENERAL
1. Scope of Application
(1) For all transactions between Eschenbach Zeltbau GmbH & Co. KG, Hoher Markstein 18–24, 97631 Bad Königshofen, Germany (hereinafter referred to as ESCHENBACH) and its customers shall be governed exclusively by the following general terms and conditions.
(2) These general terms and conditions apply both to consumers and to companies, legal entities under public law or special funds under public law, unless expressly stated otherwise below.
(3) Any deviating or conflicting terms and conditions of business of the customer are not recognised, but rejected, unless ESCHENBACH expressly agrees to them in writing.
(4) These general terms and conditions shall also apply to all future transactions between the parties and also if ESCHENBACH has delivered the goods in the knowledge of deviating or conflicting terms and conditions of ESCHENBACH.
2. Order Confirmation
(1) Offers by ESCHENBACH are subject to confirmation.
(2) A legally binding offer to conclude a contract is not deemed to have been made until ESCHENBACH has confirmed the order to the customer in writing. Verbal agreements are only part of this offer if they have been confirmed in writing by ESCHENBACH.
(3) A contract is concluded upon receipt by ESCHENBACH of a copy of the order confirmation signed by the customer within seven days of the dispatch of the order confirmation or upon ESCHENBACH actually effecting performance.
(4) In the event of a later order confirmation by the customer, ESCHENBACH is entitled but not obliged to accept the customer's contractual offer contained therein. In the event of acceptance of the contract, ESCHENBACH is not, however, bound by any delivery periods and delivery dates arising from the delayed offer.
3. Delivery, Transfer of Risk
(1) The goods must be collected by the customer from ESCHENBACH or from the place designated by ESCHENBACH.
(2) In the case of agreed delivery to the customer, ESCHENBACH will determine the type of shipment. The customer bears the shipping costs. The risk of accidental destruction or loss and accidental impairment of the goods passes to the customer in the case of delivery to a place of performance other than the place of performance specified in paragraph 1 as soon as the goods have been handed over to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
(3) If the goods are to be transported by a forwarding agent, ESCHENBACH is not liable for any delay in delivery caused by the forwarding agent if the goods have been handed over to ESCHENBACH's forwarding agent in good time.
(4) ESCHENBACH is permitted to make reasonable partial deliveries.
(5) If the contractually owed goods cannot be delivered in the agreed size, equivalent replacements can be delivered.
(6) Fundamental operational disruptions, in particular due to events for which ESCHENBACH is not responsible, such as shortages of raw materials or labour, strikes, lockouts, traffic disruptions or other force majeure, release both contracting parties from their contractual obligations.
4. Delivery Periods
(1) Failure by ESCHENBACH to comply with agreed delivery periods and delivery dates does not result in the impossibility of performance (no fixed-date transaction).
(2) The customer's rights of withdrawal and/or claims for damages due to delayed delivery or performance are excluded, unless ESCHENBACH can be proven to have acted with gross negligence or intent.
(3) In the event of default of acceptance or another culpable breach of duties to cooperate on the part of the customer, ESCHENBACH is entitled to assert the resulting damage including any additional expenses. We reserve the right to assert further claims. In this case, the risk of accidental destruction or loss and accidental impairment of the goods passes to the customer at the time of default of acceptance or another breach of duties to cooperate.
(4) In the event of a significant deterioration in the financial circumstances of the customer, in particular in the event of cessation of payments, application for the opening of insolvency or similar proceedings against the assets of the customer, the obligation to deliver shall not apply.
5. Prices, Joint and several Liability
(1) The prices stated by ESCHENBACH in the order confirmation apply. These are net ex works prices, plus turnover tax and the costs of packaging and, if applicable, shipping.
(2) ESCHENBACH reserves the right to make price adjustments to the extent that raw material prices, transport costs, tax rates or other cost factors with a direct effect on the calculation change by the time the order is executed and more than four months have elapsed between the conclusion and performance of the contract. Cost increases and cost reductions of individual cost elements are netted.
(3) By agreement, 3D drawings and floor plans can be produced for tent constructions. If the order does not materialise, ESCHENBACH is entitled to invoice the customer for the costs incurred.
(4) Several customers of one contract are jointly and severally liable. ESCHENBACH may effectively make declarations with effect for and against all joint debtors to one of them.
6. Method of Payment, default
(1) Amounts to be paid by the customer must be paid in one sum to ESCHENBACH by bank transfer at the latest 3 days before the agreed delivery. The account details to be used are given in the order confirmation.
(2) If the customer collects the goods, he can also pay the full sum in cash or by bank-certified cheque.
(3) We reserve the right to accept bills of exchange.
(4) All costs arising from the acceptance of cheques and bills of exchange shall be borne by the customer.
(5) If the customer is exceptionally granted a method of payment other than cash in advance, ESCHENBACH is entitled to demand immediate payment if it becomes aware of a deterioration in the customer's economic situation and revokes agreed payment terms, unless the customer provides prior security in rem.
(6) If the customer is in default of payment, ESCHENBACH is entitled to make the total claim immediately due and payable. Interest on arrears of 8% above the respective base interest rate p.a. is agreed. ESCHENBACH reserves the right to assert further damages caused by default.
7. Set-off, retention
(1) The customer is only entitled to set-off if his counterclaims are undisputed or have been established as final and absolute vis-à-vis ESCHENBACH.
(2) The customer is only entitled to assert rights of retention on the basis of counterclaims from the same contractual relationship.
(3) ESCHENBACH is not obliged to perform if the customer has outstanding debts from earlier or other current orders.
8. Special Notes
(1) Tents/tent halls are not suitable for snow loads. The customer is obliged to either heat them sufficiently at all times (at least 12 °C) or to regularly clear the roof surfaces of snow.
(2) After storms or other special external influences, the customer is obliged to immediately carry out visual inspections of the ground anchorages and to document these in a suitable manner.
9. Copyright Protection
(1) Offers and offer documents prepared by ESCHENBACH, in particular drawings, drafts, static calculations and similar documents, are the intellectual property of ESCHENBACH and may only be used for purposes other than the contractual purposes and/or passed on to third parties with the prior written consent of ESCHENBACH.
(2) The customer pledges to maintain secrecy about the contents of the offers and offer documents and will also pass on this obligation to third parties who, with the consent of ESCHENBACH, are active in the context of contract execution or are otherwise authorised by the customer to have knowledge of the offer and offer documents.
10. Applicable Law, Place of Performance and Jurisdiction
(1) The law of the Federal Republic of Germany applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance is Bad Königshofen or the collection point designated by ESCHENBACH.
(3) The place of jurisdiction for all disputes arising from or in connection with contracts is 97631 Bad Königshofen.
MODULE B: CONDITIONS OF SALE
1. Scope of Application
Modules A and B of these general terms and conditions apply to the sale of tents/tent halls (in standard design and with customer-specific requirements).
2. Retention of Title
(1) The goods remain the property of ESCHENBACH until all payments have been received in full (retention of title).
(2) The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, the customer hereby assigns to ESCHENBACH all claims arising from such a resale, regardless of whether this takes place before or after any processing of the goods delivered under retention of title. ESCHENBACH is obliged to release the assigned claims immediately to the customer if they exceed 110% of the realisable value of ESCHENBACH's claims against the customer. The retention of title applies until all ESCHENBACH's claims against the customer have been settled. ESCHENBACH is entitled to collect the assigned claims in its own name.
(3) The customer is obliged, at ESCHENBACH's request, to disclose the names of the third-party debtors and the amount of the claims against them and to provide ESCHENBACH with all other information and documents and to enable ESCHENBACH to realise the assigned claims, the assignment of which is accepted now and herewith. The transfer, transfer by way of security and pledging of the reserved property requires the prior written consent of ESCHENBACH. The customer must notify ESCHENBACH immediately in writing of any access by third parties to the reserved property, in particular attachments.
(4) Should the item delivered by ESCHENBACH deteriorate significantly or perish after delivery to the customer or a third party, the customer assigns to ESCHENBACH in full its claims against third parties arising from this deterioration or perishing of the delivered goods. These are in particular claims from insurance relationships for insurance benefits due to deterioration or loss. ESCHENBACH is obliged to release these assigned claims to the extent that they exceed 110% of the amount of the realisable value of ESCHENBACH's claim against the customer.
3. Obligation to give notice of Defects, Warranty
(1) Claims of the customer due to obvious material defects of the delivered goods are excluded if he does not report the defect in writing within a period of two weeks after receipt of the goods. Claims of the customer due to hidden material defects are excluded if he does not report the defect in writing within a period of one year after receipt of the goods.
(2) All tent halls are not suitable for snow load, which means that in case of snowfall the tents must be heated, otherwise the tent may collapse.
(3) A guarantee for colour deviations as well as differences in quality, dimensions, thickness and weight and the like is not accepted.
(4) In the event of a material defect, ESCHENBACH will provide supplementary performance at its own discretion either by remedying the defect or by delivering a defect-free item.
(5) Warranty claims can only be asserted within 12 months after the transfer of risk.
(6) Any warranty is excluded for used goods. This does not apply to liability for damages resulting from injury to life, body or health which are based on a negligent breach of duty or an intentional or negligent breach of duty by representatives or vicarious agents of ESCHENBACH. This shall also not apply to other damages based on a grossly negligent breach of duty or on an intentional or grossly negligent breach of duty by representatives or vicarious agents of ESCHENBACH.
(7) No warranty claims shall exist after the goods have been processed or treated by the customer. Unauthorised modifications or repairs to the goods by the customer shall release ESCHENBACH from any warranty.
(8) The above paragraphs 1, 3 and 4 do not apply if and to the extent that customers are consumers according to § 13 BGB (German Civil Code).
MODULE C: RENTAL CONDITIONS
1. Scope of Application
(1) Modules A and C of these general terms and conditions apply to the rental of tents/tent halls (in standard design or with customer-specific requirements).
(2) In addition, Module B of these general terms and conditions shall apply if the rental includes a purchase option for the customer.
2. Liability for Defects and Damages
(1) The customer shall only have claims for damages due to defects in the rented item if ESCHENBACH is responsible for the defect intentionally or through gross negligence or if ESCHENBACH is in default of remedying the defect intentionally or through gross negligence. This does not apply to damages resulting from injury to life, body or health. In this respect, ESCHENBACH shall be liable for intent and negligence (also of its legal representatives or vicarious agents).
(2) The customer is liable for any damage to the rental object, even if the damage was caused by his employees, staff, subtenants, visitors, suppliers and craftsmen.
(3) A non-uniform surface structure does not constitute a defect of the leased object. The customer is aware that when using a flooring system from ESCHENBACH, the installation of additional floor covering (e.g. carpet, PVC, laminate, floor tiles) is recommended due to different types of use, intended purposes and age of the floor.
(4) Damage to the rented item caused by wind, storm, water, snow, fire or force majeure during the term of the rental agreement and which limits the possibility of use of the rented item does not entitle the customer to a reduction in the rent and does not oblige ESCHENBACH to remedy the defect free of charge, unless the damage is due to gross negligence or intent on the part of the foreman or other vicarious agents of ESCHENBACH.
(5) Liability for damage to the customer's furnishings and exhibits is excluded, unless the damage is attributable to grossly negligent conduct or intent on the part of the foreman or other vicarious agents of ESCHENBACH.
(6) In the event of strong wind, the rental object must be closed on all sides. In winter, the customer must heat the rented item at the latest at the onset of snowfall so that the snow that falls can defrost immediately, otherwise there is a risk of collapse. If the rented object collapses because of snow and missing or insufficient heating, the customer is liable for the resulting damage.
3. Cleaning Costs
(1) The gluing of scaffolding and tarpaulin material is not permitted. Advertising material may only be affixed if it is subsequently removed by the customer without any damage.
(2) The removal or cleaning of glued-on material by ESCHENBACH or a reduction in value of the material caused by gluing will be additionally charged to the customer.
(3) In the event of heavy soiling of the rental object (e.g. due to bad weather conditions) or soiling caused in an unnatural way (e.g. due to heating, kitchen appliances or extreme terrain conditions), ESCHENBACH is entitled to charge the customer for the additional cleaning costs according to time and effort.
4. Entering the rented Rooms
ESCHENBACH or its authorised representatives and agents are free to inspect the leased property during reasonable business hours of the customer after prior notification. ESCHENBACH must be given access at all times in the event of danger.
5 . Subletting
(1) Subletting is only permitted with the prior written consent of ESCHENBACH. Any consent granted may be revoked if there are reasons in the person or behaviour of the sub-tenant which would entitle ESCHENBACH to terminate the rental agreement without notice if such reasons were in the person or behaviour of the customer.
(2) In the event of unauthorised subletting, ESCHENBACH can demand that the customer terminate the sublease as soon as possible, but at the latest within one month. If this is not done, ESCHENBACH may terminate the main rental relationship without notice.
(3) ESCHENBACH is entitled to make its consent to subletting dependent on the agreement of a one-time/monthly sublease surcharge of up to 20% of the one-time/monthly rent.
(4) In the event of subletting, the customer is liable for all acts or omissions of the subtenant regardless of fault.
(5) Subletting also includes any other transfer of use to third parties that exceeds a temporary period.
(1) The customer receives door keys when the rental object is handed over. The number of keys depends on the size of the rental object and the number of doors.
(2) After dismantling the rented item, the customer is obliged to hand over the keys received to the foreman of ESCHENBACH or the main person in charge from a subcontractor. Otherwise ESCHENBACH is entitled to charge EUR 15.00 per door key for the loss.
(3) ESCHENBACH must be notified immediately of any loss of a key. If a key for a locking system is lost or not returned, ESCHENBACH may arrange for the complete replacement of the corresponding locks or the entire locking system at the customer's expense. This does not apply if and insofar as it can be assumed that misuse of lost keys is impossible.
(1) The customer shall take out suitable property insurance for the risks of wind, storm, water, snow, fire or force majeure, which shall correspond to the value of the leased object.
(2) On request, the customer must provide ESCHENBACH with written proof of this insurance.
(1) ESCHENBACH is entitled to terminate a rental agreement based on months or longer periods of time in an orderly manner no later than on the third working day of a calendar month with effect from the end of the next calendar month.
(2) The statutory provisions apply to the termination of the rental relationship for good cause. The notice of termination must be in writing.
(3) ESCHENBACH is entitled to terminate the lease without notice in particular if:
• the customer is more than one month in arrears with the payment of a monthly rent,
• the customer defaults several times with considerable parts of the rent despite a warning,
• a significant deterioration or substantial endangerment of the financial situation of the customer exists and, at the same time, the claims and interests of ESCHENBACH are endangered,
• the customer uses the rental object in a manner contrary to the contract despite a warning,
• the customer fails to provide ESCHENBACH within two weeks with written proof of the conclusion of suitable insurance policies as requested by ESCHENBACH in accordance with section 7,
• ESCHENBACH has not been truthfully informed or fraudulently misled about the purpose of use of the leased item, in particular about the character, the organiser and/or the guests of an event planned therein by the customer or a subtenant.
9. Expiry of the Rental Period
Upon expiry of the rental period, the rental relationship shall not be extended for an indefinite period even if the customer continues to use the rental item and one of the contracting parties does not object to this; § 545 BGB (German Civil Code) shall not apply.
MODULE D: ASSEMBLY AND DISASSEMBLY CONDITIONS
1. Scope of Application
Module D of these general terms and conditions shall apply if, in addition to the sale or rental, the erection and/or dismantling of tents/tent halls (in standard design or with customer-specific requirements) has been agreed with the customer.
2. Official Approvals, Building Books
(1) Insofar as required by the applicable building regulations, the customer is obliged to make a building notification or to file a building application and to obtain a building permit in good time. The customer undertakes to send to ESCHENBACH without delay after the building inspection has been carried out a building inspection book provided to him by the building supervisory authority for the purpose of the building inspection.
(2) The contractual relationship is not affected by refused or delayed official approvals or conditions and does not release the customer from his obligation to accept and pay.
(3) The costs for building books are not included in the offer prices, but will be invoiced separately to the customer. Costs and fees for transcriptions of building books and necessary official approvals are to be borne by the customer.
(4) In case of loss of the inspection books, the customer will be charged the replacement costs of EUR 2,500.00 plus 19% VAT in each case.
3. Carrying out the Assembly / Disassembly
(1) The customer is solely responsible for the construction sites. The customer shall provide the necessary auxiliary personnel.
(2) The construction site must be accessible and passable with heavy trucks and crane vehicles. Waiting times and other costs for which the customer is responsible will be charged separately.
(3) The customer is obliged to rent forklift trucks or mobile cranes, which are necessary for loading and unloading as well as for assembly and disassembly of the leased object, at his own expense. The customer must ensure that a suitable forklift truck or mobile crane is provided in good time for unloading and the start of erection, as well as for the start of dismantling until the end of loading, in coordination with ESCHENBACH.
(4) Waiting times and other costs for which the customer is responsible will be charged separately. In the event of delays of more than 0.5 hours in forklift transport, waiting times will be charged at EUR 90.00 per hour/truck and EUR 30.00 per hour/installer.
(5) Minor time delays caused by ESCHENBACH do not release the customer from his payment obligations and in particular do not entitle the customer to assemble or dismantle the subject matter of the contract without ESCHENBACH's foreman. In the event of infringement, a contractual penalty for the customer of EUR 1,000 is due immediately. We reserve the right to assert a claim for higher damages.
(6) The connections and the means for the sub-distribution of water, waste water and electricity, as well as for fire extinguishers and emergency lighting (emergency battery-powered spotlights and emergency exit lighting), are provided by the customer.
(7) ESCHENBACH's price calculations are based on the assumption of a level site, unless the order contains references to a separate substructure for level adjustment. Additional costs arising from a necessary additional substructure will be charged according to expenditure and are to be borne by the customer.
(8) Tents and tent halls must be able to be anchored with soil nails (100 cm long). If shorter soil nails are to be used, the customer must notify ESCHENBACH of this in writing at least seven days before the start of erection. If anchoring with soil nails is not possible, heavy-duty dowels from ESCHENBACH can be used. In the case of a concrete base, anchoring can be carried out with heavy-duty dowels; these are charged at 15.50 €/each. The closing of the drill holes must be carried out by the customer.
(9) If anchoring is not possible at all, it can be replaced by heavy-duty flooring or ballast, which will be charged separately. This must be stated in writing by the customer at least seven days before the start of assembly; otherwise the customer shall bear the costs incurred for waiting times.
4. Building Ground Risk
(1) The customer bears the risk of any damage to the lawn or the construction area, e.g. due to bad weather conditions. The site must be buildable (e.g. free of snow) and must have at least 2 m of installation space around the construction area.
(2) The customer guarantees at his own expense the proper trafficability of the construction site, as well as its suitability for assembly and use of the subject matter of the contract. The customer guarantees that the transport material and empty transport containers can be stored in the immediate vicinity of the construction site. Otherwise, the customer shall bear the additional costs for interim storage.
(3) If above-ground and/or underground electricity, gas, water or waste water pipes or other obstacles exist in the area of the construction site, the customer must remove these before the start of construction or provide ESCHENBACH with written documents showing the exact course of the earth lines and their depth. The customer shall be liable for all damage caused as a result of non-compliance with these obligations or faulty earth line plans. If a suitable earth line plan is not available by the start of work, the customer will agree to the start of work and, in the event of damage, will bear the costs for damage to earth lines, provided that this is not caused by intentional or grossly negligent conduct on the part of ESCHENBACH.
(4) In case the building ground is laid with interlocking paving stones, holes must be drilled for the anchoring of the subject matter of the contract, whereby stones can be damaged. The customer shall bear the costs for the damage and the restoration of the surface.
(5) If erection takes place in winter and tent heaters are not contractually to be supplied by ESCHENBACH, the customer is obliged to provide the necessary heating devices already during the assembly period of the individual tents/tent halls, so that the necessary heating can be started as soon as the individual tents/tent halls are closed by inserting the tarpaulins, irrespective of when the handover to the customer is to take place. In case of dismantling in winter, tents/tent halls must be free of snow and frost.
(6) ESCHENBACH accepts no liability for undulating floor coverings due to the effects of cold and heat. Reworking that occurs during or after the erection phase will be invoiced to the customer according to time and effort. These may occur due to the heating-up phase after assembly or at the start of the event. Depending on environmental influences, the adhesive strength of the double-sided adhesive tape may change, so that adhesion cannot be guaranteed.
(7) Power supply lines which are required for the connection of the tent lighting systems or other electrical equipment are to be laid by the customer with sufficient capacity up to the tent and the corresponding switch cabinet is to be installed by the customer. Where necessary, the connected loads required by ESCHENBACH will be announced before the start of construction.
(1) Acceptance of the contractual performance shall take place upon completion of the construction of the object matter of the contract. Partial acceptances do not take place.
(2) A record of the acceptance shall be drawn up and signed by both parties.
(3) If the object of the contract is not accepted in due time although the service has been provided without defects, ESCHENBACH is entitled to demand either consideration or compensation for damages due to non-performance or to withdraw from the contract. In addition, without prejudice to the possibility of claiming higher actual damages, 30% of the order amount is owed as compensation without presentation of proof. The customer may provide evidence that a lower damage has been incurred.
6. Change in Services
(1) The customer may demand changes to the content and scope of the services. This also applies to parts already provided and delivered.
(2) ESCHENBACH will, if the changes are not insignificant, determine the time delays and additional expenditure arising as a result of the desired changes and the parties will agree on a corresponding adjustment of the contract. If the parties fail to reach agreement, ESCHENBACH is entitled to reject the request for changes or to charge for repeat orders additionally at a minimum of 25% but not more than 50% of the order amount.
7. Liability for Defects
ESCHENBACH shall be liable for defects of quality and defects of title in accordance with the provisions of the BGB (German Civil Code) for the contract for work and services. ESCHENBACH shall initially be entitled to remedy the defect. If this fails, the customer shall be entitled to further rights in respect of defects (self-remedy, withdrawal, reduction, compensation).
(1) ESCHENBACH shall only be liable – except in the case of breach of material contractual obligations, injury to life, body or health or claims under the Product Liability Act - for intent or gross negligence.
(2) Material contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract.
(1) If the customer makes use of his right of termination under § 649 sentence 1 BGB (German Civil Code), ESCHENBACH is entitled to charge the following flat-rate remuneration:
• up to 2 days before the start of erection: 100% of the net order value
• 3 to 7 days before the start of erection: 75% of the net order value
• 8 to 14 days prior to the start of erection: 50% of the net order value.
(2) The customer is entitled to prove that ESCHENBACH's remuneration is lower in accordance with § 649 sentence 2 BGB (German Civil Code).
Eschenbach Zeltbau GmbH & Co. KG
Hoher Markstein 18–24
97631 Bad Königshofen