General Terms and Conditions of Josef Barthelme GmbH & Co. KG

I. GENERAL

1. The following General Terms and Conditions of Sales and Delivery (GTCs of Josef Barthelme GmbH & Co. KG, hereinafter referred to as: the Supplier) are a fixed component of all offers and contracts for the delivery of goods by the Supplier, as well as in current and future business transactions, without requiring a repeated explicit reference. By granting the orders, the Customer gives its approval in this regard.

2. The Supplier does not accept any additional provisions by the Customer, or any provisions which vary from or contradict these GTCs, except where the Supplier has given its explicit written approval. Our GTCs also apply if the Customer excludes the validity of the Supplier’s General Terms and Conditions of Sales in its Purchasing Conditions and if we make no explicit objection. Any agreements between the Customer and the Supplier in special cases take priority.

3. Verbal arrangements as well as additions and amendments must be in writing in order to take effect.

4. We retain use and exploitation rights under property and copyright law in relation to the cost estimates, drawings and other documents provided to the Customer (hereinafter: Documentation).  The documentation, including any copies, may only be made available to third parties after the Supplier’s explicit approval has been obtained. If the Supplier is not instructed to perform the order, the documentation must be returned immediately. All technical data in our sales documents, lists, drawings and instructions, and any weights and measures, have been compiled with care. We reserve the right to make subsequent corrections in case of obvious errors. The product-related technical specifications are set out in the relevant applicable product description. Deviations regarding measurements, weight, technical design, manufacture and scope of the goods to be delivered are permissible within the product-specific tolerances commonly accepted in the industry. Furthermore, the Supplier is deemed to have accepted any changes which serve to technically or otherwise improve our products.

II. CONTRACT CONCLUSION | PRICES | PAYMENT TERMS

1. Our offers are subject to confirmation and subject to prior sale. Orders/listings and agreements made by the Supplier's sales representative only take legal effect when the Supplier confirms them in writing.

2. The delivery deadlines on the order confirmations are always non-binding. Agreed deadlines are only binding if they have been confirmed explicitly in writing as a fixed deadline. Where the order is executed immediately, the goods invoice or delivery note shall serve as the order confirmation.

3. Order amendments and cancellations require a timely written confirmation. The Supplier shall notify the Customer in writing in an amended order confirmation of any changes to the original offer or the order confirmation which the Customer agrees with the end customer or one of its customers, and which result in additional costs. If the Customer does not object within seven working days of receiving the amended order confirmation, the new provisions shall apply as contractual content.

4. Excess deliveries or short deliveries of up to 10% of the order quantity are permitted for larger or regularly recurring special products for the Customer without prior arrangement, and shall be charged as such.  The Customer shall not be permitted to return the special products.

5. All prices are ex works Nuremberg excluding the usual packaging plus statutory VAT. The Customer shall be charged separately for any requested special, external or small packaging. The same shall apply for special or express deliveries.

6. Cost estimates are non-binding except where explicitly agreed otherwise. Offer prices shall apply only if all offered goods or quantities are accepted. We reserve the right to adjust our prices after concluding the contract and before delivery if circumstances, tariff agreements, changes to raw material prices, other Supplier price changes or exchange rate fluctuations occur, which we could not predict with sufficient certainty and for which we are not responsible. Orders below a net goods value of EUR 50.00 can only be executed in return for a processing fee in the amount of EUR 15.00.

7. We shall charge the applicable recycling flat rate for all items subject to the German Waste Management Act.

8. If the Supplier has accepted installation or assembly, and there have been no agreements to the contrary, the Customer shall bear all ancillary costs required in addition to the agreed fee, such as travel and transport costs as well as daily allowance.

9. The Supplier's invoices fall due one month after the invoice date without deductions. The deduction of a discount requires a separate written agreement.

10. If the payment target is not met, the Supplier can demand the Customer to pay default interest in the amount of eight percent above the base interest rate in accordance with § 247 of the Civil Code (BGB). The right to assert additional damages shall remain active. The above does not apply if the Customer can provide evidence that it is not responsible for the delay. If the Customer defaults on payment, all outstanding payments fall due immediately unless the Customer can provide evidence that it is not responsible for the default.

11. The Customer agrees to electronic invoice delivery by email where the invoice is sent by post on the Customer’s request, the latter agrees to pay a surcharge of EUR 1.00 per invoice.

III. DELIVERY DEADLINES | DELIVERY DEFAULT

1. In order for the Supplier to meet the delivery deadlines, the Customer must provide all specifications, documents, required permits and approvals, especially regarding plans, on time, and must observe the agreed payment terms and other obligations. If these conditions are not met on time, the delivery deadlines shall be postponed accordingly unless the Supplier is responsible for the delay.

2. Fixed deadline transactions (§ 376 of the Commercial Code - HGB (1)) must be explicitly confirmed in writing.

3. If the delivery deadlines are not met due to Acts of God, e.g. war, riots, mobilisation or similar events (e.g. strike, lock-out, etc.), the deadlines shall be postponed accordingly.

4. The delivery deadlines shall also be postponed if the Supplier’s suppliers do not deliver to the Supplier on time.

5. If the Supplier does not meet the delivery deadline or comply with the delivery period, the Customer shall set an appropriate period of grace for the Supplier in writing. If the Supplier is responsible for not delivering during this period of grace, the Customer may withdraw from the contract.

6. If the Supplier is responsible for failing to comply with agreed binding deadlines, the Customer may demand compensation – if it can credibly demonstrate having incurred damage – of 0.5% for each full week of the default, up to a maximum of no more than 5%, of the price for that part of the delivery which could not be used as intended due to the default. The limit to liability shall not apply if the Supplier is guilty of intent or gross negligence or if it is necessarily liable due to loss of life, bodily injury or damage to health.

7. At the Supplier’s request, the Customer must state within a reasonable period whether it will withdraw from the contract due to the delayed delivery, and/or whether it demands compensation instead of performance, and/or whether it insists on delivery.

8. If the delivery, dispatch or receipt is delayed at the Customer's request, the Supplier may, at the earliest ten working days after notifying its readiness to deliver the goods, invoice the Supplier for a storage fee in the amount of 0.5% of the invoice total for each commenced month, however up to a maximum of 5% of the storage fee. This shall not affect the Parties’ right to provide evidence of higher or lower storage costs.

9. We may send partial deliveries where this is reasonable. Deviations regarding measurements, weight, technical design, manufacture and scope of the goods to be delivered are permissible within the product-specific tolerances commonly accepted in the industry. Furthermore, the Supplier is deemed to have accepted any changes which serve to technically improve our products.

IV. TRANSFER OF RISK

1. The goods shall be delivered for the Customer by a carrier of our choice.

2. The Supplier is entitled but not obligated to take out separate insurance in the name and on account of the Customer for the risks related to transport.

3. On delivery or transfer, the risk of accidental destruction or loss shall pass from the party executing the delivery to the Customer. This also applies if the Supplier carries out the transport itself or arranges for its assistants to do so.

4. In addition, the risk shall pass to the Customer as soon as the latter delays on acceptance after receiving the notification from the Supplier that the goods are ready for delivery.

5. Packaging returns are governed by special conditions.

6. If none of the persons named by the Customer are present at the specified delivery location on the agreed date, or if said person or other persons are not willing to accept the goods, the Customer shall be deemed to have defaulted on accepted with the result that the risk passes to it. Moreover, it shall bear any additional costs incurred due to the need for a repeat delivery.

7. The Customer cannot refuse to accept deliveries due to insignificant defects.

V. RETENTION OF TITLE

1. The delivered goods (goods subject to a retention of title) shall remain the Supplier's property until all claims which the Customer owes the Supplier under the business relationship, including all outstanding balances from the current account, have been paid.

2. While the goods are subject to a retention of title, the Customer may neither pledge the goods nor transfer them as security. In the case of pledges, confiscation or other third-party orders or interventions, the Customer shall inform the Supplier immediately.

3. The Customer may sell on the goods which are subject to a retention of title during the ordinary course of business, to the extent that it receives the agreed remuneration or no transfer prohibition has been agreed. The Customer hereby transfers its claim to the purchase price from the sale to the Supplier by way of security. However, it shall remained authorised to collect the claims transferred by way of security unless this authorisation is revoked. The authorisation may be revoked if the Customer is responsible for failing to meet, or for no longer meeting, its contractual obligations. If the collection authorisation is revoked, the Supplier may notify of the transfer. The Customer must provide the documentation required to notify of the transfer and for collection immediately.

4. A sale in the ordinary course of business does not apply if the Customer pledges the goods subject to a retention of title to third parties contrary to Section 2, transfers them as a security and/or for the purpose of factoring and/or uses them under the sale-lease-back process.

5. Where the goods subject to a retention of title are processed, this shall be on account of and for the Supplier as the manufacturer. In such a case, the Supplier shall become the (co-) owner of the processed goods subject to a retention of title at the time of processing proportionately according to the value of the new item. The Supplier shall also be a co-owner of the new item if third-party goods are processed together with the goods subject to a retention of title. If the Customer sells on the newly produced item, all claims from the sale in the value of the goods subject to a retention of title are hereby passed to the Supplier by way of security.

6. If the goods subject to a retention of title are damaged or otherwise impaired, the Customer shall inform the Supplier immediately. If the Customer incurs third-party claims from the damage or impairment, it hereby transfers said claims to the Supplier by way of security.

7. If the value of all security interests to which the Supplier is entitled exceed the value of all secured claims by more than 20%, the Supplier shall release the relevant proportion of the security interests at the Customer’s request.

8. If the Customer violates its obligations, particularly if it defaults on payment, the Supplier may withdraw from the contract and take back the goods subject to a retention of title. The Customer is obligated to release the goods. The Supplier is not obligated to withdraw from the contract in order to take back the goods subject to a retention of title nor to assert its title, and this also does not constitute a conclusive declaration of withdrawing from the contract, except where the Supplier states explicitly that such actions are to be interpreted as a withdrawal.

VI. WARRANTY

1. Defect claims on the part of the Customer require the Customer to comply with its statutory duty to inspect and notify before making a defect claim according to §§ 377, 381 of the Commercial Code (HGB). This also applies to installation and further processing of the goods in advance. § 438 HGB applies to damage during transport. The goods are deemed to have been delivered in the state required under the contract if apparent external damage or loss are not reported immediately or if apparent external damage is not reported within eight days. For latent defects, this period shall start with discovery. If the Customer fails to report the damage, it shall be liable for any damage incurred by the Supplier under presumption of conformity according to § 438 HGB, especially from the loss of its claims in relation to the carrier.

2. Defect claims shall not apply in case of mere insignificant deviations from the agreed quality, or if usability is only impacted to an insignificant extent; nor to natural wear and tear, damage incurred after transfer of risk due to inappropriate or negligent handling, excessive use, unsuitable operating materials, inadequate assembly, inappropriate foundations, damage caused by special external influences which cannot be assumed under the contract, and software errors which can no longer be reproduced.

3. If the Customer or third parties carry out inappropriate changes, assembly/dismantling or maintenance work, this and any consequences thereof shall also not incur defect claims.

4. Where justified defect reports are made, i.e. in the case of material defects which were present, or whose causes were present, at the time of the transfer of risk, the Supplier may at its option defect rectification (defect removal) or subsequent delivery (replacement delivery).

5. The Customer shall give the Supplier the time and opportunity required to provide the subsequent performance owed, and especially hand over the rejected goods for testing. In the case of an actual defect, the Supplier shall pay the expenses incurred for testing and supplementary performance, particularly for transport and travel costs, labour and material costs, as well as the costs of removing the defective item or for installing or assembling the repaired or delivered defect-free item. If the Supplier delivers a defect-free item for the purpose of supplementary performance, the Customer shall return the defective item. This applies accordingly to defective components if these are replaced by defect-free components in the case of defect rectification. If the Customer's request for defect rectification is shown to be unjustified, the Supplier may demand reimbursement of the defect analysis costs, including retroactively, according to its prices for services.

6. If the Supplier is not able to rectify the defect or provide a subsequent delivery, if it may refuse defect rectification or subsequent delivery under § 439 (3) BGB, if the Supplier is responsible for delayed defect rectification or subsequent delivery beyond a reasonable period, or if defect rectification or subsequent delivery fails twice, the Customer may at its option either withdraw from the contract or demand an appropriate reduction of the purchase price.

7. The Customer's claims regarding expenses for supplementary performance are excluded to the extent that higher costs are incurred because the delivery item was moved to a location other than the Customer’s premises at a later point in time, except where the transport is in accordance with intended use. This applies accordingly to the Customer's compensation claims under § 445a BGB (seller recourse), assuming the last contract in the supply chain is not a consumer goods purchase.

8. The Customer's compensation claims under § 445a BGB (seller recourse) only apply to the extent that the Customer has not concluded an agreement with its buyer in excess of the legal defect claims.

VII. RETURN OF THE GOODS

1. It is the Supplier’s decision whether to accept returned defect-free goods; therefore, such goods should only be returned after obtaining the Supplier’s prior written approval. Goods requiring approval are undamaged staple inventory goods in their original packaging, these exclude special products, special acquisitions and surplus production (cf. II 4). The Supplier shall issue a goods return number for the Customer which can be used to exclusively trace the goods return. The goods must be returned free-of-charge. Where return deliveries incur a charge or if goods are returned without a goods return number, the Supplier may refuse to accept the goods.

2. After checking the goods, the Supplier shall issue a credit up to the amount of 70% of the goods value at the time, however reserving the right to make further deductions based on age, type and quality of the goods. Where goods of less than EUR 100.00 per delivery are returned, a processing fee is charged in the amount of EUR 15.00. In addition, the Customer shall bear all transport costs, packaging and repackaging costs and any maintenance costs.

VIII. COMPENSATION

1. Defective goods which suffer a defect within the limitation period – irrespective of their service life – must, at the Supplier’s option, be either repaired free-of-charge, re-delivered or provided again, to the extent that the cause of the defect already applied at the time that the risk was transferred.

2. Material defect claims, withdrawal and reduction have a limitation period of 12 months from the statutory start of the limitation period. This does not apply if the law stipulates longer periods, if the Supplier violates its obligation either intentionally or due to gross negligence, in case of malicious concealment of a defect and for non-compliance with a guarantee of quality. The Customer's expense claims under § 445a BGB (seller recourse) also have a limitation period of 12 months from the statutory start of the limitation period, provided that the last contract in the supply chain is not a consumer goods purchase. This shall not affect the legal provisions regarding suspension or interruption of the statute of limitations and a new start date of the limitation period.

3. The Customer shall notify the Supplier of material defects immediately in writing.

4. In case of material defects, the Customer may withhold payments such that the amount reasonably corresponds to the material defects. The Customer does not have a right of retention if its defect claims expire. If the defect claim is not justified, the Supplier may demand compensation from the Customer for the costs incurred.

5. The Customer may not assert compensation claims, regardless of the legal reason, particularly due to a violation of duties resulting from a contractual obligation or due to prohibited actions, unless mandatory liability applies under the Product Liability Act, in cases of liability for intent or gross negligence, due to loss of life, bodily injuries or damage to health, or due to a violation of material contractual obligations.

6. However, compensation claims relating to the violation of material contractual obligations shall be limited to the typical, foreseeable damage, to the extent that these were not caused by intent or gross negligence or result from loss of life, bodily injuries or damage to health.

7. If one of the Customer's customers, or one of the latter's customers, request supplementary performance for a justified reason, the Customer shall grant the Supplier an appropriate period to carry out the supplementary performance itself before commissioning third parties to do so. The Customer shall obligate its customer accordingly. If the Customer violates these obligations, the Supplier shall have the right to reduce the compensation to the amount which it would have incurred if it had carried out supplementary performance itself. § 444 BGB shall remain unaffected.

8. Where performance is impossible for reasons for which the Supplier is responsible, the Customer's compensation claim is limited to 10% of the value of that part of the delivery which cannot be used as intended because delivery has become impossible, to the extent that the Supplier is not guilty of intent or gross negligence and no mandatory liability applies due to loss of life, bodily injuries or damage to health. This shall not affect the Customer's right to withdraw from the contract.

VIII. AUXILIARY GOODS

1. All materials, products, etc. (auxiliary goods) provided by the Customer or end customer are free-of-charge and must be delivered to the Supplier at the latest 20 working before the Supplier's agreed delivery date. The Supplier shall only check the auxiliary goods for quantity and transport damage.  The auxiliary goods need not undergo a quality check.

2. The Supplier does not accept liability for material defects for defects and damage caused by the auxiliary goods. If claims are asserted against the Supplier for damage and defects caused by the auxiliary goods, the Customer shall indemnify the Supplier from such claims.

X. MISCELLANEOUS

1. The legal relationship according to this contract is governed by German substantive law, excluding UNCISG.

2. The Supplier's headquarters are the sole jurisdiction for all disputes directly or indirectly caused by this contractual relationship.

3. If a provision of these terms or a provision in the context of other agreements is or becomes invalid, this shall not affect the validity of the remaining provisions or agreements.

2018 Version
© Josef Barthelme GmbH & Co. KG