Terms and conditions of Gustav Barth GmbH, Renningen and Barth Metall GmbH, Hainichen
I. Scope and contract conclusion
- The present business conditions apply for all agreements made by us and with us, supplies and other services from our company.
- Terms to the contrary or terms deviating from our terms and conditions of our customers are expressly rejected by us, unless we expressly agreed to their validity in writing.
- Our offers are always non-binding. Technical modifications and deviations with regard to form, color, equipment or weight remain reserved within reasonable limits. Complementary information before or after entering into the contract, drawings, pictures, technical data etc. only become an element of the contract if this is expressly agreed to in writing.
- The order for the goods by the customer is valid as a binding offer of contract. The agreement comes about through our acceptance. The content of the agreement is specified in the order confirmation. Oral collateral agreements are ineffective. Possible commitments of our representatives or sales employees or other assurances are non-binding without our written approval.
- We reserve the right to obtain the necessary information about our business partners any time.
- The entering into the agreement and the fulfillment of the date of delivery is subject to the condition that the shipment is not rendered impossible by force majeure or other non-foreseeable events not known at the time of completing the contract (e. g. breakdowns in business operations, difficulties with the supply of materials or energy, strikes, lawful lockouts, deficiencies in employees, not orderly or non timely delivery by the suppliers), for which we are not responsible. In the event of lasting unavailability of the shipment we have the right to rescind from the agreement in commercial transactions (right of withdrawal). At all events, the customer shall be notified immediately and be reimbursed for any performance already undertaken on his part, if he wishes to dissolve the contract. He is not entitled to claims beyond or other than provided for in the section V. clause 6. Should a delay occur on the part of the supplier, promised delivery dates will be prolonged accordingly in accordance with IV. clause 4., insofar as we inform our customer about this in writing.
- Legally relevant declarations and notifications, which are to be submitted after conclusion of the contract by the customer or by us to the other party (e. g. setting of deadlines, notice of defects, notice of repudiation), require the written form in order to be valid.
II. Reservation of title
- We reserve title to delivered goods until payment in full of all our current claims and those arising in future against the customer from the existing supply relationship (including claims on account in the event of the operation of open accounts for deliveries of goods).
- The customer shall be obliged to properly take care of the items under the reservation of ownership, store them properly and carry out all necessary maintenance operations and preservation work as well as always be able to produce proof of the storage area of the goods on request. He shall be obliged to inform us immediately of any seizure of the goods by any third party, as well as in case of damage to the goods or any change of storage location. In the event of breach of the aforementioned obligations or in case of default of payment we are entitled, after giving previous warning, to withdraw from the contract, to demand the goods be returned and to pick up the goods.
- The customer has the right to resell or process the goods within orderly business. However, pledging or assigning security on goods is prohibited.
- In the event of resale, the customer assigns to us already in advance the claims arising against its purchasers at height of the invoice amount – in the event of our co-ownership in proportion according to the joint ownership share. The same shall apply to any other claims that take the place of delivered goods or otherwise accrue with respect to delivered goods, e.g. insurance claims or claims from unauthorized handling in case of loss or damage. The customer is given the revocable right to collect the claim. We may disclose and collect the claim as soon as the customer is in default with his obligations.
- Any processing or reconditioning of the goods by the customer shall always be in our name and for our account, which is why we directly acquire the title in the newly created goods. If processing is done with articles not belonging to us, or if the value of the new product is higher than the cost of the goods delivered, we shall acquire, in the new object, the co-ownership at the ratio of the value of the goods we delivered to the total value of the new product. If the delivered goods are combined with other goods to homogenous goods or is inseparably mixed and if one of the other items is to be regarded as the main item, the customer shall, inasmuch as the main item belongs to him, transfer the co-ownership in the uniform item proportionally to us in the ration stated in sentence 1.
- If the delivered goods are combined by the customer with a building in such a way that it becomes an essential component of the building and thus of the property and if we lose ownership in the delivered goods, the customer already assigns by way of security the arising claims against its customer (purchaser).
- It is the customer’s duty to immediately indicate in full his purchaser and the place of production or the installation site and produce adequate proof of that where applicable. He is as well obliged to immediately provide information about the amount of his residual claim in this regard. In the event of violations of this agreement, the customer is liable to a contractual penalty amounting to 10% of the net order value, at least however € 3.000 per individual case with the exclusion of continuation of offence, while simultaneously reserving the right to assert further damage claims. This is guaranteed joint and several by the responsible management.
- An assignment of claims from the resale is not permitted, unless it concerns an assignment as part of genuine factoring, which is reported to us and with which the factoring proceeds exceed the value of our secured claim. Our claims fall due immediately upon crediting of the factoring proceeds.
- We will release the reserved goods and the surrogates that have replaced them to the extent that the realizable value of such securities exceeds the receivables to be secured by more than 10%. The selection of the items to be released will be chosen by us.
III. Price, payment
- The prices apply for the agreed scope of services and deliveries. Additional or special services shall be invoiced separately. Prices are listed in Euro ex warehouse, plus packaging, shipping, value added tax; in case of export deliveries customs duty as well as any fees and other public duties.
- Our claims against the customer fall due immediately after billing and shall be paid net without deduction, unless otherwise agreed in written form. The buyer shall bear the costs of monetary transactions. If the customer has not paid within the agreed term of payment, he shall be in default. We are not obliged to accept drafts or checks; they shall only be accepted in lieu of formal payment. If the customer comes into default, we shall be entitled to charge default interest in the amount of eight per cent above the base rate (§ 247 German Civil Code (BGB)) p. a. on the outstanding amount; the application of higher interest rates and additional damages in case of default remains unaffected.
- If payment by installments has been agreed and an installment is not paid on time, in full or in part, the total outstanding amount becomes due and payable immediately.
- We are entitled to carry out or provide outstanding deliveries and services only against advance payment or a security deposit, if in the course after contract close we gain awareness about conditions that are appropriate in reducing the creditworthiness of the customer and that make the payment of the outstanding demands from the relevant contractual relations appear in danger die (e.g. request for the opening of insolvency proceedings, frequent execution proceedings, loss of creditworthiness by issuing checks without cover, assessment of our credit insurer). In this case we are entitled – if applicable after setting a deadline – to refusal of performance (§ 321 BGB).
- Customer offsetting or the withholding of payments is permitted only insofar as the counter-claims are undisputed or have been determined by final judicial decision.
IV. Shipment and passing of risk
- Delivery shall be ex warehouse. The title goes over to the customer when the goods are transferred to a shipper or freighter, at the latest when they leave the warehouse. This shall apply irrespective of the form of shipment and also in a free issue basis.
- The goods will be delivered unpacked and unprotected against rust. The customer shall bear the obligations and costs of unloading, even if our employees or a freighter we commissioned delivers the goods. If it appears expedient – after due consideration – we are entitled to use customary packaging. The customer shall bear the costs according to our estimates and also for the provision of other protection or transportation aids.
- We shall be entitled to execute partial deliveries to a reasonable extent.
- Our proposed deadlines and dates for the supply of goods and services apply only approximately unless a fixed deadline or a fixed date has been expressly agreed. The observance of such deadlines and dates assumes that all commercial and technical issues between the contractual partners have been resolved and the customer has met all the obligations accruing to him (e.g. provision of the necessary official certifications or the making of down payments). If this is not the case, the delivery time shall be reasonably extended.
- In the event that the customer is in default of acceptance or infringes cooperation duties in this context, we shall be entitled to demand compensation for losses incurred, including any extra expenses.
V. Warranty and liability for compensation
- We warrant for defects of goods at our own discretion by repairing or replacing the goods.
- The customer must inform us immediately about visible and identifiable defects, at the latest within three days after the acceptance of the goods in writing, otherwise the warranty shall be excluded. In the case of a notice of defect, the customer shall be obliged to allow us inspection and examination at any time.
- The warranty is void if we grant special prizes, covered by the agreement, on goods deviating from commercial quality or on used goods.
- If we fail to effect subsequent delivery or rectification, the customer may, at his own discretion, demand reduction of the remuneration or cancellation of the contract. Apart from that we do not owe compensation on accounts of defects.
- We guarantee that our goods fundamentally meet the requirements provided in the manufacturer’s product description, any advertising beyond that will never be binding us. The guarantee shall not be applicable if a disadvantageous change of the goods is due to errors by the customer, its agents or its purchasers in handling, maintenance, or storage and the correction of deficiencies is made impossible or unacceptably difficult.
- In addition, we shall only be liable for damages, insofar as they are based on a violation of an essential contractual obligation or have been caused by intentional or grossly negligent acts of our legal representatives, our vicarious agents or us. In the event of slightly negligent violation of an essential contractual obligation, then our liability is limited to the foreseeable losses that are typical of the contract. An essential contractual obligation exists at obligations, whose fulfillment enables the proper implementation of the contract or on the fulfillment of which the customer has relied and was entitled to rely. Any liability for damages going beyond this shall be excluded. Liability on account of culpable injury to life, limb or health remains unaffected in accordance with the legal regulations. This also applies to mandatory liability in accordance with the product liability law.
- The customer’s warranty claims become time-barred within 12 months. The limitation period shall begin when the goods are delivered.
- In the event of liability for simple negligence, our compensation obligation for material damage and other financial loss resulting from that shall be limited to an amount of EUR 500,000.00 per case of loss, even if this is a case of infringement of obligations essential to the contract.
VI. Final provisions
- The legal venue for all and any disputes arising out of the business relations between the customer and us is, according to our choice, the court competent for our domicile or the customer’s domicile. The exclusive venue for claims against us is the court competent for Renningen.
- The law of the Federal Republic of Germany shall apply. The Agreement of the United Nations concerning contracts involving international goods sales dated April 11, 1980 (CISG) does not apply.
- Our customer can only make use of exemption from turnover taxes in the case of transnational deliveries and services within the EU if he possesses a valid sales tax identification number and provides the necessary evidence, and provides the necessary export certificate for deliveries and services outside the EU. If the customer does not provide the required documentation within 10 days, we are entitled to invoice retrospectively for the value-added tax applicable in Germany at the respective time.
- Insofar as the contract or these terms and conditions contain any loopholes, those legally effective provisions which the contracting partners would have agreed according to the commercial aims of the contract and the purpose of these terms and conditions if they had been aware of the loopholes are considered to be agreed for filling these loopholes.
- Should individual provisions of these terms and conditions be void or inexecutable, the validity of any provision remaining shall be unaffected thereby (§ 306 BGB).
As of: 01.01.2014