Terms and Conditions of Firma F. W. Barth & Co. GmbH
§ 1 Conclusion of the contract
- All contractual conclusions shall take place with the inclusion of these general terms and conditions of business of the Seller. Conflicting terms and conditions of purchase of the Buyer shall not become part of the contract, unless this is expressly agreed.
- A conclusion of a contract on the basis of these general terms and conditions of business shall lead to these becoming a legally binding part of the agreement, also of all further contracts between the Seller and the Buyer,without this needing to be agreed in individual cases.
- The contract shall not become effective until written confirmation of the Seller. Up until this point, all offers of the Seller shall be non-binding. This shall also apply in respect of orders which are accepted by travellers or representatives of the Seller.
- All of our declarations which concern the conclusion of the contract shall require written form to take effect. The same shall apply in respect of our declarations concerning an amendment to or termination of the contract, with the exception of individual contractual agreements as defined in §305 b of the German Civil Code (BGB).
§ 2 Delivery deadlines and delivery times
- Delivery deadlines and delivery times shall apply subject to correct and timely self-delivery, unless the Seller is personally responsible for the incorrect or delayed self-delivery or has agreed to binding delivery deadlines in writing. In case that the Seller is responsible for the delay, the Buyer shall merely be entitled to rescind the contract in case of non-compliance with delivery dates or delivery deadlines if the Buyer has previously set the Seller a reasonable period of grace of at least 30 days, in case of imports from overseas, 60 days. The Seller shall only be obliged to pay damages in accordance with § 7.
- Unforeseeable events such as strikes on the part of the Seller, war, fire, sovereign measures
or natural disasters, as well as cases of force majeure after conclusion of the contract shall release the Seller from its obligation to provide performance for the duration of their effects. The Seller shall be obliged to immediately inform the Buyer of such events. In case of a long term inability to provide the delivery due to force majeure, the Seller shall be entitled to rescind the contract. The Seller shall only be obliged to pay damages in accordance with § 7.
§ 3 Acceptance and transfer of risk
- The sale of the goods shall take place ex works in accordance with INCOTERMS 2000 unless otherwise agreed. The goods shall be stored at the expense and risk of the Buyer, once the availability has been notified to the Buyer. In case of agreed shipping, the risk shall be transferred to the Buyer at the time of handover of the goods to the carrier or shipping company, however at the latest at the time of leaving the warehouse of the Seller. This shall also apply if the shipping takes place at the expense of the Seller. Following a written request of the Buyer, the shipment will be insured by the Seller at the expense of the Buyer against theft, breakages, damage during transportation or other insurable risks. Otherwise, the Seller shall not be obliged to take out insurance. Subject to special agreements, the Buyer must take possession of the purchased goods within three working days of the availability notification. Regardless of the rights in § 6, the Buyer must take possession of delivered goods, even if these display minor defects.
- Unless otherwise expressly agreed and also in writing, in case of purchases made for call-off, the goods must be accepted by the Buyer at the latest two months following conclusion of the contract at the request of the Seller. Should the Seller request the acceptance of the goods following the expiry of the said deadline, the Seller shall have the right to rescind the contract following the expiry of eight working days or to invoice the goods, whereby the invoice shall be due for payment immediately, regardless of an acceptance of the goods. The right of the Seller to demand compensation in respect of the loss caused to it due to non-acceptance, as well as its other statutory rights, in particular the right of self-help sale, shall not be affected by the measures above.
- The Seller shall be entitled to provide partial services to a reasonable extent.
- Quantity statements shall, as a rule, be subject to the “approximate clause”. The Seller shall be entitled to carry out deliveries with a difference of up to 10% more or less and to invoice these accordingly.
§ 4 Prices and payment
- Should taxes, fees or other duties be increased or newly introduced after conclusion of the agreement and prior to fulfilment of the contract which increase the costs connected to the respective contract to the detriment of the Seller, the Parties shall, following a request by the Seller, negotiate a corresponding increase in respect of the purchase price. The same shall apply in case of an increase in shipping costs or other costs charged by third party companies which are incurred by the Seller.
- The invoice shall be settled within ten banking days of the date of the invoice, without any discount.
- In case of an agreed exchange regulation, the issuance of state central bank discountable sections shall take place within eight days of the date of the invoice. The term of the exchange may not exceed 90 days (from the date of the invoice). Exchange taxes, discount charges which are customary for the banks and other exchange costs shall be borne by the Buyer. In all cases, bills of exchange and cheques will only be accepted as a conditional payment. The Seller shall not be obliged to accept bills of exchange or cheques. Should it become apparent after conclusion of the contract that the payment claim of the Seller is endangered due to a significant deterioration in the asset position of the Buyer, the Seller shall be able to set the Buyer a reasonable deadline, during which the Buyer must, according to the choice of the Seller, provide security or provide consideration in respect of the performance. Should the Seller exercise the above right of requesting the provision of security or an advance payment and should the Buyer fail to comply with the said request, the Seller shall be entitled to rescind the contract.
- Should the Buyer enter into default in respect of performance under this contract, then following the setting of a period of grace of five working days following commencement of the default, the Seller shall be entitled, according to its choice, to sell the goods on the open market or publicly for the Buyer’s account. The Buyer shall remunerate the Seller in respect of any reduced proceeds in comparison to the purchase price, whereby the assertion of further damages claims shall not be affected thereby. The same shall apply if the Buyer enters into default in respect of the acceptance of the goods, in full or in part. Should the Buyer enter into default in respect of the payment of the purchase price, it shall be obliged to pay interest to the Seller which is customary in the banking sector, however to a minimum of 8 percentage points above the respective base rate of interest. In case of consumers, the rate shall be a minimum of 5 percentage points above the respective base rate of interest.
- A retention of payments or the setting off with counterclaims due to other contractual relationships of the Parties shall only be permitted on the part of the Buyer if the said counterclaims are undisputed or have been recognised by a court.
§ 5 Reservation of ownership
- Until full payment of all remaining claims under the business relationship, including any future claims which may arise, including any current account balance and ancillary claims/damages claims, the goods shall remain the property of the Seller.
- Processing and reworking of the goods which are subject to reservation of ownership shall take place for the Seller as the manufacturer as defined in § 950 of the German Civil Code (BGB). This shall not give rise to any obligation on the part of the Seller. The goods which are created by means of the processing or reworking shall be deemed to be reserved property as defined in Number 1.
- In case of reworking, connection or mixing of the goods which are subject to reservation of ownership by the Buyer with other goods which are not the property of the Seller, the Seller shall become the co-owner of the new item. The proportion of the co-ownership shall be determined in accordance with the relationship of the invoice value of the goods which are subject to reservation of ownership to the invoice value of the other used goods at the time of the reworking, connection or mixing. In case that the ownership of the Seller lapses due to the connection, mixing or reworking, the Buyer hereby now assigns to the Seller any ownership rights or expectant rights in respect of the newly created item to the extent of the relationship of the invoice value of the goods which are subject to reservation of ownership to the invoice value of the other used goods and shall store these free-of-charge for the Seller. The co-ownership rights of the Seller shall be deemed to be goods which are subject to reservation of ownership, as defined in Number 1.
- The Buyer shall be entitled to sell on the goods which are subject to reservation of ownership within the framework of its normal business dealings. The authority to sell on the goods can be revoked should the Buyer not act in accordance with the contract. Claims from selling on shall be deemed to have been assigned to the Seller at the time of their conclusion. Should the Seller only be a co-owner of the goods, the claims shall be deemed to have been assigned to the Seller to the extent that the value relationship of its co-ownership in respect of the goods which are subject to reservation of ownership at the time of the sale corresponds to the co-ownership rights of third parties in respect of the goods.
- The Buyer shall be entitled to collect the claims under the resale in its own name. The said entitlement shall cease on revocation by the Seller. This shall be permitted in case of a sustainable deterioration to the asset position of the Buyer, at the latest at the time when it suspends payments or the application for or opening of insolvency, bankruptcy or settlement proceedings against its assets. In case of revocation, the Buyer shall be obliged to provide the Seller, following a request to be issued by the Seller, with a precise list of the claims to which the Buyer is entitled with the name and address of the consumers, the amount of the individual claims, the invoice date and other information which is required for the assertion and to provide the Seller with the necessary information for the assertion of the assigned claims.
- The pledging of the goods which are subject of reservation of ownership or the assigned claims, as well as the provision of these as security, is not permitted. The Seller must be immediately informed of seizures, stating the name of the creditor.
- Following a declaration of rescission, the Seller shall be entitled to retake possession of the goods which are subject to reservation of ownership. Any existing claim to damages shall remain unaffected thereby. In case of retaking of the goods which are subject to reservation of ownership, the Seller shall be entitled to use these following an advance warning and to satisfy itself by setting off against open claims from the revenues of the sale.
- The Buyer shall store the goods which are subject to reservation of ownership for the Seller free-of-charge. The Buyer shall insure the goods which are subject to reservation of ownership against customary risks (for example fire, theft and water damage) to the necessary sum insured. In case of an insurance claim, the Buyer is hereby now assigning its claims against the insurance company to the Seller in advance. The Seller hereby accepts the said assignment.
- Should the value of the security to which the Seller is entitled exceed all of its claims by more than 20%, the Seller shall, following a request by the Buyer or a third party which is affected by the excess security of the Seller, be obliged to release securities to this extent.
§ 6 Guarantee in respect of defects
- The Buyer shall inspect the goods at the time of taking possession and shall subsequently provide immediate written notification to the Seller in respect of any defects. Subsequent objections, in particular in respect of quality, condition, dimensions etc shall be excluded. Defects which were not recognisable during a proper inspection shall be notified to the Seller immediately in writing, once these become obvious in the proper course of business. Complaints due to incorrect item numbers or other incorrect quantities shall only be taken into account if these are made at the time of acceptance and recorded in the delivery not. Subsequent complaints by the Buyer shall be excluded.
- Should a material defect be present, the Seller shall provide supplementary performance either by means of a replacement delivery or improvement, depending on its choice and taking into account the interests of the Buyer. Provided that the Seller complies with its obligations to correct the defects within a reasonable deadline, the Customer shall not have the right to demand a reduction to the remuneration or annulment of the contract, unless the improvement fails.
- Should the goods concern significant third party products, the liability of the Seller shall be limited to the assignment of the defect warranty claims to which it is entitled against the supplier of the goods. Should it not be possible to bring a lawsuit against the supplier for actual and legal reasons, the Seller shall incur liability in accordance with § 7.
- Further claims of the Buyer shall be in accordance with § 7 of these terms and conditions. Rights of rescission of the Buyer in accordance with § 478 of the German Civil Code (BGB) shall remain unaffected, with the exception of the claim to damages, which shall also be in accordance with § 7.
§ 7 Liability and limitation period
- Also in respect of its management employees and vicarious agents, the Seller shall only incur liability for breach of contractual and non-contractual obligations in case of intent and gross negligence, limited to the loss which is foreseeable at the time of conclusion of the contract and which is typical of the agreement. Otherwise, liability of the Seller shall be excluded.
- The restrictions under Number 1 shall not apply in case of culpable breaches of essential contractual obligations, provided that the attainment of the contractual purpose is endangered, in case of culpable damage caused to life, body and health an also not then if and to the extent that the Seller has assumed a guarantee concerning the quality of the sold item, as well as in cases of mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz) or other statutory regulations. The regulations concerning the burden of proof shall not be affected thereby.
- Defect guarantee claims shall lapse on the expiry of a period of one year following delivery. The statutory limitation periods for such goods which have been used in accordance with their usual utilisation for a building and which caused the building’s defects shall remain unaffected by the above. The liability of the Seller due to intentional and grossly negligent breaches of obligations, injury to life, body and health which is culpably caused and the limitation of recourse claims in accordance with § 478 of the German Civil Code (BGB) shall also remain unaffected.
§ 8 Arbitration clause, place of jurisdiction
- All disputes concerning quality questions shall be determined in the course of the “amicable arbitration of Bremen” to the exclusion of normal legal redress in accordance with the arbitration regulations of the Chamber of Commerce in Bremen (in the current version dated 20.07.1998). The Seller will make the text of the said arbitration regulations available, following a request which can be made at any time. The results of the said quality arbitration shall then be binding between the Seller and Buyer, also in case of further disputes or disputes elsewhere within the framework of the contractual relationship. For such disputes, normal legal redress shall then be agreed. The Buyer shall be obliged to co-operate in the above-mentioned quality arbitration, even if the legal validity of the sales agreement is disputed for its part. The appeal of lack of legal validity in subsequent court proceedings before the ordinary courts shall not be affected thereby.
- The exclusive mutual place of jurisdiction for legal disputes before the ordinary courts shall be the locally competent courts for Korschenbroich, Germany.
- German law shall apply exclusively.
§ 9 Place of performance
The place of performance for the delivery shall be Korschenbroich, Germany. This shall also apply if the Seller has undertaken to ship the goods to a third location. The place of performance for the payment of the purchase price, as well as for the other services of the Contracting Parties, exclusive of supplementary performance and returns due to a rescission, shall also be Korschenbroich, Germany.
§ 10 Supplementary provisions
Trade practices which are recognised under international or national law shall also apply additionally, unless the provisions above object to such. This shall also apply to the INCOTERMS in the respective current version of the ICC Paris.
§ 11 Closing provisions
Should any individual clauses of these general terms and conditions of business or parts thereof be or become ineffective, this shall not affect the validity of the remaining (partial) provisions. In such a case, the ineffective (partial) clause shall be replaced by a provision which the Parties would have agreed if they had been aware of the ineffectiveness. The same shall apply in case of a contractual loophole.
F. W. Barth & Co. GmbH
As of II/2010