General
Terms and Conditions

BARTH GmbH | Gerhard-Meister-Str. 5 | 83342 Tacherting | GERMANY

§ 1 Applicability

1. These General Terms and Conditions for Business Customers (hereinafter referred to as “GTC”) apply to all deliveries and services, including future deliveries and services, unless the Customer is not a merchant as defined in the German Commercial Code (HGB).

2. Our GTC apply exclusively. We do not recognise any provisions to the contrary or provisions set out in the Customer’s own terms that deviate from our GTC unless we have expressly agreed to them.

3. Our GTC also apply if we make deliveries to the Customer without reservation although we are aware of provisions to the contrary or provisions set out in the Customer’s own terms that deviate from our GTC. Contracts and agreements will only be binding on us if they are confirmed in writing.

4. Collateral agreements, amendments or supplements that deviate from our GTC only apply to the transactions for which they have explicitly been agreed. They neither apply retroactively nor do they apply to future transactions unless they have been separately confirmed in writing.

§ 2 Offers and Contract Formation

1. Special offers announced in brochures, advertisements, etc. – including the prices quoted – are subject to change and availability at time of enquiry. Specifically prepared offers are valid for 30 calendar days, starting on the date of the specific offer unless otherwise stated in the offer.

2. Oral statements will only be binding after they have been confirmed in writing.

3. Contracts and agreements will only be binding on us if they have been confirmed in writing.

4. Information provided by BARTH GmbH in offers and/or order confirmations, which is an obvious clerical error , e.g. spelling or calculation errors, do not bind BARTH GmbH. Instead, the originally intended information is valid.

5. The Customer agrees not to pass on, publish, duplicate or otherwise make available to third parties offer documents, drawings, descriptions, samples and cost estimates of BARTH GmbH. The documents must be returned on request; no copies may be retained.

6. If we use the Customer’s samples, drawings or other specifications to manufacture an order placed by the Customer, the Customer will be solely responsible for ensuring that this does not infringe any third-party rights. The Customer is also responsible for the correctness of the specifications.

§ 3 Prices, Changes in Prices

1. Unless otherwise stated, all prices include value-added tax as applicable, which must be shown separately.

2. All prices are exclusive of packaging and freight. We will take out transport insurance or other insurance covers only upon the specific request of the Customer at the Customer’s cost.

3. If the time between the conclusion of the contract and the agreed and/or actual delivery date is more than six months, the prices of BARTH GmbH valid at the time of delivery or provision of the goods or services apply; if such prices exceed the prices first agreed on by more than 10%, the Customer is entitled to withdraw from the contract.

§ 4 Delivery Times

1. Delivery times are subject to BARTH GmbH receiving correct and on-time deliveries from its suppliers unless a fixed delivery time has been confirmed in writing.

2. If the delivery of the goods or services is delayed due to circumstances BARTH GmbH, its legal representatives or vicarious agents are responsible for, the statutory liability provisions apply. In the event of slight negligence, liability is limited to the damage foreseeable at the time the contract was concluded and the damage typical of the type of contract, maximally however 0.5% for each full week of delay and not more than 5% of the value of the part of the overall delivery that is not available for use in time or not as provided for in the contract due to the delay. This principle in particular applies in the event of force majeure, strike, lock-out, orders by the authorities, etc., including if the suppliers of BARTH GmbH or their sub-suppliers are affected by such events. The statutory additional period of time to be granted by the Customer in the event of a delay in delivery is set at two weeks. It starts counting on the date BARTH GmbH receives notice of the additional period of time. The Customer is only entitled to withdraw from the contract after the additional time limit has expired.

§ 5 Dispatch and Passing of Risk

1. The risk passes to the Customer as soon as the consignment has been handed over to the person in charge of the transport or left the premises of BARTH GmbH to be dispatched. If the Customer requests for the consignment to be shipped later or not at all, the risk passes to the Customer at the time it is notified that the goods are ready for dispatch.

2. On the request of the Customer transport insurance will be taken up on its behalf and at its cost (see clause 3.2).

§ 6 Warranty/Defects

1. Obvious defects must be notified immediately, latest however within 14 days after receipt of the goods, stating the findings in detail. BARTH GmbH must be notified of hidden defects and defects that are detected only after the machines and tools have been put into operation immediately after they have been discovered, stating the findings in detail.

2. If the notice of defect is justified and sent in time, the statutory warranty provisions apply. Any further claims are excluded. The defect will be rectified by us or by third parties either by removing/repairing it, exchanging the [faulty] parts or delivering new parts, at our discretion.If after the defect has been removed the Customer raises a new justified claim of defect and the Customer cannot reasonably be expected to accept further subsequent improvements or replacement deliveries, the Customer has the right to demand a reduction in the purchase price or rescission of the contract insofar as it concerns the faulty goods.

3. We reserve the right to separately charge the Customer all costs incurred for the inspection of the goods if the claim proves unfounded. The Customer must have the faulty goods ready for BARTH GmbH to inspect them in the condition they were in when the defect was discovered.

4. The warranty period starts counting on the date of delivery or date of acceptance. It is 12 months unless mandatory statutory rules provide for a longer warranty period . The warranty covers
parts only. It does not cover s ervic es or assembly on site

5. I nsignificant , acceptable deviations in dimensions and designs – in particular with regard to subsequent orders – do not entitle the Customer to claim, unless exact compliance with parameters has been expressly agreed.

6. Technical improvements as well as necessary technical modifications are also deemed in accordance with the contract insofar as they do not adversely affect the usability of the goods.

7. If BARTH GmbH’s operating or maintenance instructions are not complied with, products are modified, parts exchanged or consumable materials used that do not correspond to the original specifications, no warranty can be claimed unless the Customer is able to prove that the defect was not caused by one of the actions mentioned above, as laid down in a substantiated statement.

8. BARTH GmbH cannot be held liable for usual wear and tear.

9. The regulations defined in this paragraph do not apply to the sale of pre-used items to business customers in the sense of
section 14 German Civil Code [ BGB ]]. The delivery of such items is exclusive of any warranty.

10. If BARTH GmbH is available to the Customer beyond its statutory obligations with regard to the provision of information on the use of its pr odu c t BARTH GmbH can only be held liable
as defined in paragraph 7 above if a separate fee for this service has been agreed .

§ 7 Limitation of Liability

1. We assume liability in accordance with the provisions of the German Product Liability Act as well as in cases of inability and impossibility we are responsible for. We will also be liable for damage as defined in the statutory provisions in the event of intent, gross negligence, assuming a guarantee as well as loss of life, injury to body/limb or health we are responsible for. If we are in breach of duty of a material contractual obligation or if the breach of duty is material for the purpose of the contract execution, our liability is limited to the damage foreseeable at the time the contract was concluded and the damage typical of the type of contract. In all other liability cases claims for damages based on a breach of duty arising from the obligation relationship as well as based on tort are excluded. To that extent we cannot be held liable for loss of profit or other pecuniary losses of the Customer.

2. In as far as liability on our part is excluded or limited based on the provisions above, this also applies to the personal liability of our salaried employees, workers, associates, sales staff, representatives and vicarious agents.

3. The Customer’s liability claims against us become statute-barred as laid down in clause 6.4 hereof, unless the claims are based on tort or the German Product Liability Act.

§ 8 Retention of Title

1. BARTH GmbH retains the title to the goods delivered (items over which ownership has been retained) until all claims BARTH GmbH has against the Customer for whatever legal reason have been settled.

2. The Customer must notify BARTH GmbH in writing without delay if items over which ownership has been retained have been pledged and notify the pledgee of the retention of title. The Customer does not have the right to sell, give away, pledge or transfer the title as a form of security of the delivered items over which ownership has been retained except in the cases set forth in the clauses below.

3. If the delivery is meant for a business operat ed by the Customer, the items may be resold within the scope of sound and prudent business management. In this case the Customer’s claims against the purchaser arising from the sale are deemed assigned to BARTH GmbH as of now. If the items are resold on credit, the Customer must retain the title to the items delivered to the purchaser. The Customer herewith transfers to BARTH GmbH its rights and claims arising from the retention of title to the items delivered to the purchaser.

4. Any working or processing of the items over which ownership has been retained performed by the Customer will be free of charge for BARTH GmbH. If the items over which ownership has been retained are processed, connected, intermixed or mixed with other goods not owned by BARTH GmbH, BARTH GmbH is entitled to the co-ownership share of the new item, ie the pro-rated amount of the invoice value of the items over which ownership has been retained in relation to the processed goods at the time they were processed, connected, intermixed or mixed with other goods. If the Customer acquires sole ownership of a new item, the parties to the contract agree that the Customer grants BARTH GmbH co-ownership of the new item at the ratio of the amount of the invoice value of the processed, connected, intermixed or mixed items over which ownership has been retained and keeps them for the supplier free of charge. If the items over which ownership has been retained are resold together with other goods, irrespective of whether they have not been or after they have been processed, connected, intermixed or mixed, the advance assignment agreed in clause 8. 3 only applies to the amount of the invoice value of the items over which ownership has been retained that have been resold together with the other goods.

5. If the items over which ownership has been retained are connected by or on behalf of the Customer with a plot of land of a third party in such a way that they become an essential part of the plot of land, the Customer as of now assigns to BARTH GmbH any potentially arising claims for compensation, including all ancillary rights and granting a debt-securing mortgage, against the third party or any other person concerned.

6. If the items over which ownership has been retained are connected to the Customer’s plot of land in such a way that they become an essential part of the plot of land, the Customer as of now assigns to BARTH GmbH any claims, including all ancillary rights, arising from the sale of the plot of land or rights to the plot of land.

7. If the total value of the existing securities provided to BARTH GmbH in accordance with the provisions above exceeds the value of BARTH GmbH ’s claims not just temporary claims by
more than 20% 20%, BARTH GmbH on the Customer’s request must release the relevant securities as the Customer may choose.

8. If the Customer does not meet its obligations towards BARTH GmbH or not in time and/or if the Customer deals with the items over which ownership has been retained in an inadmissible way, BARTH GmbH, without prejudice to its right to performance of the contract it is entitled to, has the right to demand items to be surrendered to BARTH GmbH insofar as the reasonable deadline set for the Customer has passed without success. If the Customer has met its obligations under the contract, BARTH GmbH must return the items. The aforementioned regulation does not apply to hire-purchase transactions that are governed by the German Consumer Credit Act.

§ 9 Payment

1. Unless otherwise agreed, the payment terms are advance payment. The goods will only be dispatched or delivered after payment has been received.

2. BARTH GmbH explicitly reserves the right to refuse to accept cheques or bills of exchange. Acceptance is always in lieu of performance of contract. Discount and bill-of-exchange charges must be borne by the Customer. They are due immediately.

3. If BARTH GmbH becomes aware of circumstances that raise doubts about the creditworthiness of the Customer, in particular if a cheque issued by the Customer bounces or the Customer stops payment, BARTH GmbH has the right to demand immediate payment of the entire outstanding debt even if it has accepted cheques. In addition, BARTH GmbH in this case is entitled to demand advance payment or the provision of securities.

4. If the Customer stops payment altogether and/or if bankruptcy proceedings are instituted against its assets or insolvency proceedings to settle in or out of court with the creditors are opened, BARTH GmbH also has the right to withdraw from the part of the contract that has not been performed.

5. Notwithstanding any provisions to the contrary set out in the Customer’s own terms, BARTH GmbH has the right to offset any payments against the Customer’s older debts first. BARTH GmbH will inform the Customer about such kind of offsetting. If BARTH GmbH has already incurred costs and interest, BARTH GmbH has the right to first offset the payment against the costs, then against the interest and last against the main debt.

6. If the Customer is in default of payment, BARTH GmbH has the right to claim interest on arrears as applicable by law. BARTH GmbH retains the right to claim additional damages for the delay. The Customer remains free to prove that the actual damage suffered in the cases mentioned above was less, which will then be relevant.

7. The Customer is not permitted to offset any claims, unless the counterclaims have been recognised by declaratory judgment or are undisputed by BARTH GmbH.

§ 10 Governing Law, Jurisdiction, Severability

1. These GTC and all legal relationships between BARTH GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany and the UN Sales Convention.

2. If the Customer is a merchant as defined in the German Commercial Code, a legal entity under public law or of a special fund under public law, the courts at BARTH GmbH’s registered place of business shall have exclusive jurisdiction over any dispute which may arise out of or in connection with this contract.

3. If one provision of these GTC is or becomes invalid, such invalidity does not affect the validity of the remaining provisions and agreements between BARTH GmbH and the Customer.

BARTH GmbH

Note:
In the event of any inconsistency or conflict between the German and the English version, the German version shall prevail.