General
Terms and Conditions

§ 1 Validity of the conditions

1. The following conditions (hereinafter “GTC”) apply to all deliveries and services from BARTH GmbH (hereinafter also “entrepreneur” or “we” or “us”), also via the online shop (at www. barth-shop. de), as agreed. They apply equally to business transactions with companies (§ 14 BGB) and consumers (§ 13 BGB), unless oth- erwise stipulated in these General Terms and Conditions.

2. The purchaser is a consumer if he con- cludes the contract for purposes that cannot predominantly be attributed to their commer- cial or independent professional activity. The purchaser is an entrepreneur if he is engaging in a commercial or self-employed occupation- al activity when concluding the contract.

3. Our GTC shall apply exclusively. Any terms and conditions of the purchaser contrary to or deviating from our GTC will only be recognized when their validity has been expressly agreed to in writing.

4. Our conditions also apply if we perform de- liveries to the purchaser without reservation in the knowledge of purchaser’s terms and con- ditions being contradictory to or deviant from our terms and conditions.

5. Subsidiary agreements, amendments or supplements that deviate from our General Terms and Conditions only apply to transac- tions for which they were expressly agreed in writing. They do not have retroactive effect nor do they apply to future transactions unless they are confirmed again in writing.

§ 2 Offers and conclusion of contract

1. Offers and conclusion of contracts outside the online shop
a) All offers enclosed in brochures, advertise- ments etc, and the prices quoted therein are non-binding and subject to change. We shall be bound to specially prepared offers for 30 calendar days starting from the date of the of- fer, unless otherwise stated in the offer.

b) Verbal agreements only become effective after written confirmation.

c) Our statements made in offers and/or order confirmations, which are based on an obvious error, e.g. a typographical or calculation error, do not bind us. On the contrary, the obvious intention will apply.

d) Our offer documents, drawings, descrip- tions, samples and cost estimates may not be disclosed, published, reproduced or otherwise made available to third parties without our permission. The documents must be returned upon request without any copies being with- held.

e) If we use the purchaser’s samples, draw- ings or other information during production on behalf of the purchaser, the purchaser is solely responsible to third parties for ensuring that no third-party rights are violated. He is also re- sponsible for the accuracy of the information.

2. Offers and conclusion of contract via our online shop
a) Our offers in the online shop are not legally binding but rather a non-binding invitation to

the purchaser to order goods. The purchaser can add one or more products to the shopping cart. During the ordering process, the purchas- er enters their data and wishes regarding pay- ment method, delivery modalities, etc. Only by clicking on the order button the purchaser makes a binding offer to conclude a purchase contract. We save the order including details regarding the concluded contract (e.g. type of product, price, etc.). The General Terms and Conditions are sent to the purchaser by email and can be accessed at any time via our web- site, even after concluding the contract. As a registered purchaser, the purchaser can ac- cess their previous orders.

b) We may accept the purchaser’s offer within 3 working days by sending an order confirma- tion by email. Upon expiry of the period indi- cated in sentence 1, the offer will be deemed rejected, i.e. the purchaser is no longer bound to their offer.

c) A confirmation of receipt of the order sent automatically by email after receipt of the or- der does not represent an order confirmation.

§ 3 Prices, price changes in business transactions with entrepreneurs

1. Unless otherwise agreed, the prices do not include the packaging and freight costs. We only take out transport insurance or other in- surance at the special request of the purchas- er and at their expense.

2. If there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, the prices valid at the time of delivery or provision apply; if the latter prices exceed the initially agreed price by more than 10%, the purchaser is entitled to withdraw from the contract.

§ 4 Delivery times in business transactions with entrepreneurs

1. Delivery times apply subject to a correct and timely delivery of the products from our suppliers, unless a binding delivery time has been promised in writing.

2. If the delivery or service is delayed due to a circumstance for which we, our legal repre- sentatives or agents are responsible, liability shall be in accordance with the statutory pro- visions. In cases of minor negligence, liability will be limited to foreseeable and contrac- tually customary damage. This amounts to a maximum of 1⁄2 per cent for each full week of delay, but a maximum of 5 per cent of the value of that part of the total delivery that can- not be used on time or in accordance with the contract as a result of the delay. This princi- ple applies in particular in the event of force majeure, strikes, lockouts, official orders, etc., even if these obstacles occur with our or their sub-suppliers. The duration of a grace period to be granted by the purchaser in the event of a delay in performance in accordance with the statutory provisions is stipulated as three weeks beginning with the receipt of the period of grace. Only after expiry of this period, the purchaser is only entitled to withdraw from the contract.

§ 5 Shipping and transfer of risk in business transactions with entrepreneurs

1. The risk will pass on to the purchaser as soon as the shipment has been handed over to the person carrying out the transport or has left our factory for shipping. If shipping is de- layed or not carried out at the request of the purchaser, the risk is transferred to the pur- chaser upon notification of readiness for ship- ping.

2. At the purchaser‘s request, deliveries will be insured in his name and for his account.

§ 6 Liability for material defects

1. § 4 Liability for material defects in business transactions with entrepreneurs
a) In the case of obvious defects, complaints must be made immediately, at the latest with- in 14 days of receipt of the goods, with a pre- cise description of the facts. Notices of defects due to hidden defects and defects that only become apparent after machines and tools have been put into operation must be made to us immediately after they are discovered, with a precise description of the facts.

b) In the case of justified and timely com- plaints about defects, our warranty is provided within the framework of the statutory provi- sions, excluding further claims, at our dis- cretion in the form of repair by us or by third parties, by exchanging parts or by replace- ment delivery. If, after rectificatoin of such a defect, the purchaser makes a new and jus- tified complaint about the defect and he can- not be reasonably expected to tolerate further improvements or replacement deliveries, the purchaser then has the right to request either reduction the purchase price or cancellation the contract – as far as this is concerned de- fective goods.

c) We reserve the right to invoice the purchas- er separately for all costs incurred in checking the goods if the complaint is unfounded. The defective items must be kept ready for inspec- tion by us in the condition in which they were at the time the defect was discovered.

d) The warranty period begins on the date of delivery or acceptance and is 12 months, unless a longer warranty period is required by law. The warranty only includes parts and does not include on-site service or assembly.

e) Insignificant, reasonable deviations in di- mensions and designs – especially in the case of repeat orders – do not entitle to complaints unless absolute adherence to parameters has been expressly agreed.

f) Technical improvements and necessary technical changes are also considered to be in accordance with the contract as long as they do not represent a deterioration in usability.

g) If our operating or maintenance instruc- tions are not followed, changes are made to the products, parts are replaced or consum- ables are used that do not correspond to the original specifications, any warranty is void if the purchaser does not refute an appropriately substantiated claim that one of these circum- stances caused the defect.

h) The above provisions of this paragraph do not apply to the sale of previously used items to entrepreneurs in the sense of d. § 14 BGB. These are delivered without any warranty.

i) If the entrepreneur is available to the cus- tomer beyond his legal obligations to provide information regarding the use of their product, he is only liable in accordance with § 7 if a spe- cial fee has been agreed for this.

2. § 4 Liability for material defects in business transactions with consumers
Claims arising from liability for material de- fects regarding used items shall become time-barred if the pruchaser is a consumer in the sense of § 13 BGB, within one year of the transfer of risk. This period does not ap- ply to claims for damages, claims due to de- fects that we have fraudulently concealed, and claims arising from a guarantee that we may have assumed for the quality of the item. The statutory deadlines apply to these exclud- ed claims. If there is a guarantee period, the longer period applies in favor of the warrantee.

§ 7 Limitation of liability

We exclude liability for slightly negligent breaches of duty, provided these do not relate to essential contractual obligations, damages resulting from injury to life, body or health, guarantees or claims under the Product Li- ability Act (ProdHaftG). The same applies to breaches of duty by our agents and our legal representatives. Essential contractual obliga- tions are those whose fulfillment is essential for the proper execution of the contract and on compliance of which the contracting party can regularly rely.

§ 8 Retention of ownership

1. Retention of ownership in business trans- actions with consumers and entrepreneurs. We reserve the right of ownership to the deliv- ered items (reserved items) until settlement of all claims to which we are entitled against the purchaser for any legal reason.

2. Supplementary agreements on retention of ownership in business transactions with en- trepreneurs
a) The purchaser is obliged to immediately notify us in writing of any seizures of the re- served items and to inform the pledgee of the retention of ownership. The purchaser is not entitled to sell, give away, pledge or assign as security the items delivered to him under retention of ownership – except in the cases specified in the following paragraphs.

b) If the delivery is made for a business opera- tion run by the purchaser, the items may be re- sold as part of proper business management. In this case, the purchaser‘s claims against the customer resulting from the sale are al- ready assigned to us. If the items are resold on credit, the purchaser will be required to retain ownership of the goods sold to his customer. The purchaser transfers all rights and claims from this retention of ownership in respect of such customers to us.

c) Any treatment or processing of the reserved items by the purchaser will be carried out on behalf of us free of charge. If the reserved items are processed, combined or mixed with other goods that do not belong to us, we are entitled to the resulting co-ownership share of the new item in the ratio of the factor value of the reserved items to the remaining pro- cessed goods at the time of processing, com- bining and mixing. If the purchaser acquires sole ownership of a new item, the contract- ing parties agree that the purchaser grants us co-ownership of the new item in proportion to the factor value of the processed or connect- ed, mixed or combined reserved items and stores it for the supplier free of charge . If the reserved items are resold together with other goods, regardless of whether without or after processing, combining or mixing, the advance assignment agreed above under b) only ap- plies to the amount of the factor value of the reserved items that have been resold together with the other goods.

d) If the reserved items are installed as essen- tial components in the property of a third party by the purchaser or on his behalf, the purchas- er will now assign, against the third party or the person to whom it concerns, any claims for remuneration with all ancillary rights, in- cluding the granting a security mortgage to us.

e) If reserved items are incorporated into the purchaser’s property as essential compo- nents, the purchaser hereby assigns to us the claims arising from the sale of the property or property rights including all ancillary rights.

f) If the value of the securities we have in ac- cordance with the above provisions exceeds the value of our claims – not just temporary ones – by a total of more than 20%, we are obliged to release securities of their choice at the purchaser’s request.

g) If the purchaser does not fulfill his obliga- tions towards us or does not fulfill them on time and/or if he interferes with the items delivered under retention of ownership in an impermissible manner, we can, without prej- udice to his right to fulfilment of the contract, demand the return of the items, if a reasonable period of time set for the purchaser to fulfill his obligations has expired without success. As soon as the purchaser has fulfilled the contract, we will have to return the items. The above regulation does not apply to installment transactions that are subject to the Consumer Credit Act.

h) We hereby accept assignments agreed in this clause.

§ 9 Payment

1. Unless otherwise agreed, payments will be made in advance. The goods will only be shipped or delivered after receipt of payment.

2. The entrepreneur expressly reserves the right to reject checks or bills of exchange. The acceptance always results only through fulfil- ment. Discount and bill of exchange charges

are borne by the purchaser and are due imme- diately.

3. If the entrepreneur becomes aware of cir- cumstances that question the creditworthi- ness of the purchaser, in particular if he does not cash a check or stops paying, the entre- preneur is entitled to demand that the entire remaining debt is due, even if he has accept- ed checks. In this case, the entrepreneur is also entitled to demand advance payments or guarantees.

4. If the purchaser finally stops payment and/ or insolvency proceedings are filed against his assets or a judicial or out-of-court settlement procedure is applied for, the entrepreneur is also entitled to withdraw from the part of the contract that has not yet been fulfilled.

5. In spite of any provisions to the contrary on the part of the purchaser, the entrepreneur will be entitled to offset payments first against older debts, The entrepreneur will inform the purchaser of such offsetting settlements. If costs and interest have already occurred, the entrepreneur is entitled to set off payment first against the costs, then against the inter- est and finally against the main service.

6. If the purchaser is in default of payment, the entrepreneur is entitled to charge the stat- utory interest. The entrepreneur reserves the right to assert any additional damages caused by the delay. In the above-mentioned cases, the purchaser is free to provide evidence of lesser damage, which will then be decisive.

§ 10 Exclusion of set-off

Set-off on the part of the purchaser is ex- cluded unless these are legally established counterclaims that are not disputed by us or counterclaims from the same contractual re- lationship.

§ 11 Applicable law, place of jurisdiction, partial invalidity

1. The law of the Federal Republic of Germany applies to these General Terms and Conditions and the entire legal relationship between the parties, under the exclusion of CISG.

2. If the purchaser is a merchant within the meaning of the Commercial Code, a legal en- tity under public law or a special fund under public law, our place of business is the exclu- sive place of jurisdiction for all disputes arising directly or indirectly from the contract.

3. Should a provision in these General Terms and Conditions be or become ineffective, this will not affect the effectiveness of all other provisions and agreements between the en- trepreneur and the purchaser.

§ 12 Dispute settlement procedure

We are neither obliged nor willing to partici- pate in a dispute settlement procedure before a consumer arbitration board.

BARTH GmbH