General
Terms and Conditions

§ 1Application of Terms of Conditions

1. The following conditions apply to all deliveries and services as agreed – also for those from future business, unless the customer is not a merchant in the sense of the German Commercial Code (HGB).

2. Only our General Terms and Conditions apply. We do not accept Terms and Conditions of the customer that conflict with our deviate from our Terms and Conditions unless we have expressly agreed to their application in writing.

3. Our conditions are binding, even if we unconditionally carry out delivery despite having knowledge of contradictory or deviating customer conditions. Any business done or arrangements made only become binding for us when confirmed in writing.

4. Subsidiary agreements, changes or additions that deviate from our Terms and Conditions apply only to the transactions for which they have been expressly agreed in writing. They have neither retroactive effect nor are valid for future business, unless confirmed again in writing.

§ 2 Offers and conclusion of contracts

1. Offers contained in brochures, advertisements, etc. – including price information – are always subject to change and non-binding. The company shall be bound to specially prepared offer for 30 calendar days from the date of the offer, unless otherwise stated in the offer.

2. Verbal statements become binding only upon written confirmation.

3. Business and agreements become binding for us only when confirmed in writing.

4. Information in offers and/or order confirmations of the contractor based on a manifest error, namely, e.g. a typographical or arithmetical error, do not bind the contractor. On the contrary, the obvious intention will apply.

5. The offer documents, drawings, descriptions, samples and quotations of the contractor may not be distributed, published, reproduced or otherwise made available to third parties without approval. Upon request, the documents must be returned without retaining any copies.

6. If during manufacturing by us on behalf of the contractor whose samples, drawings or other information is used, the contractor bears the sole responsibility towards third parties that this does not violate any rights of third parties. He is also responsible for the accuracy of the information.

§ 3 Prices, price changes

1. Unless otherwise stated, prices include statutory VAT, which must be shown separately.

2. The prices do not include costs for packaging and freight. We only conclude transport insurance or other insurance upon special request of the customer and at his expense.

3. Insofar as there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, the prices of the contractor valid at the time of delivery or provision shall apply; if the latter prices exceed the initially agreed prices by more than 10%, the customer is entitled to withdraw from the contract.

§ 4 Delivery times

1. Delivery periods are subject to correct and timely self-delivery, unless a binding delivery date has been promised in writing.

2. If the delivery or service is delayed due to a circumstance for which the contractor, his legal representatives or vicarious agents are responsible, the liability shall be in accordance with the statutory provisions. In case of slight negligence, the liability is limited to the foreseeable damage typical for the contract. The maximum is for each full week of delay 1/2% but at the most 5% of the value of that part of the total delivery which, due to the delay, cannot be used on time or in accordance with the contract. This principle applies in particular to force majeure, strikes, lockouts, official orders, etc., even if these obstacles occur to suppliers of the contractor or their subcontractors. The period of grace to be set by the purchaser in the event of a delay in performance according to the statutory provisions is set to two weeks, which begins upon receipt of the period of grace at the contractor. Only after expiry of this period, the customer entitled to withdraw from the contract.

§ 5 Dispatch and transfer of risk

1. The risk passes to the purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left the factory of the contractor for the purpose of dispatch. If shipment is delayed or not carried out at the request of the customer, the risk shall be transferred to him with the notification of readiness for shipment.

2. Upon the request of the customer, deliveries will be insured in his name and on his account (see section 3.2)

§ 6 Warranty/Defects

1. Notifications of defects must be made immediately in the event of obvious defects, at the latest within 14 days after receipt of the goods, including a detailed description of the facts. Complaints due to hidden defects and such defects, which become recognizable only after commissioning of machines and tools, must be asserted to us immediately after their discovery, including an exact description of the facts.

2. In the case of justified and timely notice of defects, our warranty is provided within the scope of the statutory provisions to the exclusion of further claims at our discretion in the form of rectification by us or by third parties, by replacement of parts or replacement delivery.

If, after such defect has been remedied, a new and justified notice of defect is received from the purchaser and he cannot reasonably be expected to tolerate further rework or replacement deliveries, the purchaser then has either the right to demand a reduction of the purchase price or a cancellation of the contract – as far as the defective goods are concerned.

3. In case of any causeless complaint, we reserve the right to charge the purchaser separately for any costs for the examination of the goods. Defective goods must be kept ready for inspection by the contractor in the condition in which they are at the time of detection of the defect.

4. The warranty period begins with the date of delivery or acceptance and is 12 months, unless a longer warranty period is required by law. The warranty includes only parts but no service or installation on site.

5. Insignificant, reasonable deviations, dimensions and designs – especially for repeat orders – do not entitle to complaints, unless the absolute observance of parameters has been expressly agreed.

6. Technical improvements as well as necessary technical changes are also considered to be in accordance with the contract insofar as they do not constitute a deterioration of the serviceability.

7.If the company’s operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used which do not conform to the original specifications, then any warranty shall be canceled if the purchaser does not refute a substantiated allegation that only one of these circumstances has caused the defect.

8. Any liability for normal wear and tear is excluded.

9. The above provisions of this paragraph do not apply to the sale of used items to companies in the sense of § 14 BGB. These are delivered without any warranty.

10. If the contractor is available to the purchaser beyond his legal obligations to provide information regarding the use of his product, he shall only be liable in accordance with § 7 if a special fee has been agreed.

§ 7 Limitation of Liability

1. We are liable in accordance with the provisions of the product liability law as well as in the event of impossibility or incapacity for which we are answerable. Furthermore, we are liable for damages according to the statutory provisions in cases of intent, gross negligence, assumption of a warranty as well as in the event of injury to life, body or health for which we are responsible. If, by the way, we breach a cardinal obligation or an essential contractual obligation by simple negligence, our liability for compensation is limited to the contractually typical, foreseeable damage. In all other cases of liability, claims for damages due to the breach of an obligation arising from the contractual relationship as well as due to unauthorized actions are excluded, so that we are not liable for lost profits or other financial losses of the customer.

2. Insofar as our liability is excluded or limited on the basis of the above provisions, this also applies to the personal liability of our employees, factory workforce, staff members, legal representatives and agents.

3. The limitation period of the customer’s liability claims against us is governed by § 6.4, insofar as it does not concern claims arising from tort or under the product liability law.

§ 8 Retention of title

1. Until full settlement of all claims, which the contractor has against the customer for every legal reason, the contractor reserves the ownership of the delivered goods (reserved goods).

2. The purchaser undertakes to immediately notify the contractor in writing of the attachment of the reserved goods and to inform the pledgee of the retention of title. The purchaser is not entitled to sell, give away, pledge or to assign for security purposes the goods delivered under retention of title – except in the cases of the following paragraphs.

3. If the delivery is made for a business operation maintained by the customer, the goods may be resold as part of proper business management. In this case, the claims of the buyer against the buyer from the sale are already assigned to the contractor. In case of a resale, the outstanding debts of the purchaser are transferred to the contractor. If the goods are resold on credit, the purchaser shall reserve the title against his purchaser. The purchaser hereby assigns the rights and claims from this retention of title towards his purchaser to the contractor.

4. Any processing or transformation of the reserved goods by the purchaser shall be free of charge for the contractor. In the case of processing, combining, blending or mixing the reserved goods with other goods not belonging to the contractor, the contractor is entitled to the resulting co-ownership of the new goods in proportion to the invoice value of the reserved goods to the other processed goods at the time of processing, combining, blending or mixing. If the purchaser acquires the sole ownership of a new item, the parties agree that the purchaser will grant the contractor co-ownership of the new item in proportion to the invoice value of the processed or combined, mixed or blended reserved goods and will preserve it free of charge for the suppler. If the reserved goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the advance assignment agreed in clause 3 above shall only apply to the invoice value of the reserved goods that have been resold together with the other goods.

5. In the event that the goods subject to reservation of title are incorporated by the purchaser as a substantial component in the piece of land of a third party, the customer will assign to the contractor any and all claims for compensation which will become due to the buyer against such third parties or other interested parties to us in the amount of the reserved goods’ value, including all ancillary rights such as the right to the granting of a debt-securing mortgage.

6. In the event that the goods subject to reservation of title are incorporated by the purchaser as a substantial component of its own piece of land, the purchaser hereby assigns to the contractor any claims incl. all ancillary rights resulting from the commercial sale of the piece of land or resulting from the rights to such land.

7. If the value of the securities existing for the contractor according to the above provisions exceeds (not only temporarily) the value of the contractor’s claims by more than 20% in total, the contractor will be obliged, at the customer’s request, to correspondingly release securities of his choice.

8. If the purchaser fails to fulfill his obligations to the contractor or fails to do so punctually and/or improperly acts on the goods delivered subject to retention of title, the contractor may, without prejudice, claim his right to fulfill the contract of the objects, if a reasonable deadline given to the purchaser for the fulfillment of his obligations has expired unsuccessfully. If the purchaser has fulfilled the contract, the contractor shall return the goods. The above-mentioned provision does not apply to hire purchase business that is subject to the consumer credit law.

§ 9 Payment

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

2. The contractor explicitly reserves the right to refuse checks or bills of exchange. Acceptance will be only on account of performance. Discount and bill charges are charged to the purchaser and are due immediately.

3. If the contractor becomes aware of circumstances that call into question the creditworthiness of the purchaser, in particular if he fails to cash a check or ceases payment, the contractor is entitled to declare due the entire remaining debt, even if he has accepted checks. In this case, the contractor is also entitled to request advance payments or securities.

4. If the purchaser discontinues payment and/or or becomes insolvent, or in the event that a settlement procedure regarding his assets is instituted, either through the court or out of court, the contractor shall be entitled to withdraw from the contract concerning the unfulfilled part of the contract.

5. The contractor shall be entitled, irrespective of any contrary terms and conditions of the purchaser, to assign any payments first of all to any older debts of the purchaser. The contractor shall inform the purchaser of the assignment of the payment. If costs and interest have already occurred, the contractor shall be entitled to assign the payment first of all to the costs, then to the interest and last of all to the main debt.

6.If the purchaser is in default of payment, the contractor shall be entitled to charge interest at the respective applicable statutory rate. The above provisions are without prejudice for the assertion of more extensive loss or damage. In the cases described above, the purchaser is free to prove a lesser damage, which is then decisive.

7. Offsetting on the part of the purchaser will be excluded provided that it is not a question of counterclaims which are legally valid and established or which are not contested by the contractor.

§ 10 Applicable Law, Jurisdiction, Partial Invalidity

1. The laws of the Federal Republic of Germany with the exception of the UN Convention on the International Sale of Goods shall apply to these General Terms and Conditions and the entire legal relationship between the contractor and the purchaser.

2. Insofar as the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special trust or fund under public law, the sole forum and venue for any and all disputes arising from and in connection with this contract shall be the registered office of the contractor.

3. Should a provision in these General Terms and Conditions be or become ineffective, this shall not affect the validity of all other provisions and agreements between the contractor and the purchaser.

BARTH GmbH