GENERAL TERMS AND CONDITIONS

F.W.Barth & Co. GmbH
Fuggerstraße 25 · 41352 Korschenbroich – Germany
Tel +49 (0) 2161-995-599 · Fax +49 (0) 2161-995-300
www.barth1873.de · info@barth1873.de

General Terms and Conditions of the company F. W. Barth & Co. GmbH

Article 1 Conclusion of the agreement

1. All contracts are concluded based on these Terms and Conditions of the Vendor. Any contradictory purchasing conditions of the Vendee do not form part of the contract unless this has been expressly agreed.

2. A contract concluded on the basis of these General Terms and Conditions makes them a legally binding part of the contract and all further contracts between the Vendor and Vendee, without this having to be agreed in each individual case.

3. The contract shall only become effective with the written confirmation of the Vendor. Up until this point in time, all offers made by the Vendor are subject to change. This also applies to orders that are accepted by travelling salespersons or representatives of the Vendor.

4. All of our declarations relating to the conclusion of the contract require the written form in order to be valid. The same also applies to our declarations relating to a change or the termination of a contract with the exception of individual contractual agreements in the sense of Article 305 b of the German Civil Code (BGB).

Article 2 Delivery periods and delivery times

1. Delivery periods and delivery times are subject to the correct and timely delivery by our suppliers, unless the Vendor is personally liable for the incorrect or delayed delivery from the suppliers or has agreed to binding delivery times in writing. In the event of a delay to delivery for which the Vendor is responsible, the Vendee is only entitled to withdraw from the contract as a result of the non-observance of the delivery periods or delivery times if it has set the Vendor an appropriate period of grace of at least 30 days, for overseas imports at least 60 days, in advance. The Vendor is only liable for damages in accordance with Article 7.

2. Unforeseeable events such as strikes at the Vendor’s company, war, fire, sovereign acts or natural catastrophes, as well as other incidents of force majeure after the conclusion of the contract, release the Vendor from its performance obligations for the duration of their impact. The Vendor is obligated to notify the Vendee about these types of events immediately. If it becomes impossible to deliver goods as a result of an incident of force majure, the Vendor is entitled to withdraw from the contract. The Vendor is then only liable for damages in accordance with Article 7.

Article 3 Acceptance and passage of risk

1. The sale of the goods is carried out ex works (in accordance with INCOTERMS 2000) if nothing to the contrary has been agreed. The goods are stored at the expense and risk of the Vendee as soon as the Vendee has been notified that they are ready for shipment. In the event that the agreed shipment involves the transfer of the goods to a freight forwarder or carrier, the risk passes to the Vendee at the latest when the goods leave the Vendor’s warehouse. This also applies if the shipment is carried out at the expense of the Vendor. If a corresponding request is received in writing from the Vendee, the goods will be insured by the Vendor against theft, breakage, transport damage or other insurable risks at the Vendee’s expense. Otherwise, there is no obligation on behalf of the Vendor to take out insurance cover. Subject to any special agreements, the Vendee shall accept delivery of the purchased goods within three days at the latest of being notified that they are ready for shipment. Delivered goods, even if they display slight defects, must be accepted by the Vendee notwithstanding its rights according to Article 6.

2. For purchase transactions made for the delivery of goods on demand, the goods must be accepted at the request of the Vendor no later than two months after the conclusion of the contract, unless something to the contrary has been expressly agreed in writing. If the Vendor demands the acceptance of the goods after the expiry of this deadline, it is entitled to withdraw from the contract after eight working days or to issue an invoice for the goods, whereby the invoice becomes due for payment immediately irrespective of whether the goods have been accepted or not. The Vendor’s right to demand compensation for the damages caused by the non-acceptance of the goods, as well as other legal rights, especially those involving the distress sale of the goods, are not affected by the measures described above.

3. The Vendor is entitled to make reasonable partial deliveries.

4. As a general rule, quantities are subject to the “circa provision”. The Vendor is entitled to make deliveries where the quantity deviates by up to 10% more or less and to invoice this appropriately.

Article 4 Prices and payment

1. If taxes, fees or other levies are increased or newly introduced after the conclusion of the contract but before fulfilment of the contract, which increase the costs to be borne by the Vendor in relation to the relevant contract, the parties shall negotiate a corresponding increase in the purchase price at the request of the Vendor. The same applies in the event of an increase in freight charges or other costs from third party companies that must be borne by the Vendor.

2. Invoices must be paid within ten banking days of the invoice date without deductions.

3. If payment in the form of a bill of exchange is agreed, the issuing central bank must pay the discountable bill within eight days of the invoice date.
The term of the bill of exchange must not exceed 90 days (from the invoice dates). Taxes relating to the bill of exchange, standard bank discount rates charges and other exchange charges shall be borne by the Vendee. In all cases, bills of exchange and cheques shall only be accepted as conditional payment. There is no obligation on the behalf of the Vendor to accept bills of exchange or cheques. If it becomes clear after the conclusion of the contract that the Vendor’s claim for payment is endangered due to a significant deterioration in the Vendee’s financial circumstances, the Vendor is entitled to set the Vendee an appropriate deadline within which the Vendee is required to provide at the Vendor’s discretion either security or a counterperformance at each stage to cover the provided services. Should the Vendor exercise its right to demand the provision of a security or advance payment and the Vendee does not comply with this demand, the Vendor is entitled to withdraw from the contract.

4. Should the Vendee default on a performance under the contract, the Vendor is entitled, after having granted an extended deadline period of five working days after the default, at its discretion to privately or publicly sell the goods at the expense of the Vendee. The Vendee shall recompense the Vendor for any shortfall in comparison to the purchase price, whereby the right to assert additional claims for damages remains unaffected. The same also applies if the Vendee totally or partially defaults after accepting the goods. Insofar as the Vendee defaults on the payment of the purchase price, the Vendee shall pay the Vendor the standard bank interest charges, at a rate of at least 8 percentage points, in the case of consumers 5 percentage points, above the current base rate.

5. The Vendee is only entitled to retain payments or offset them against counterclaims due to other contractual provisions between the parties insofar as these counterclaims are not disputed or have been legally established.

Article 5 Retention of title

1. The goods remain the property of the Vendor until the settlement of all payment claims – even those incurred later – that relate to the business relationship including any possible settlement of a current account balance, as well as any subsidiary claims and claims for damages.

2. The processing and manufacturing of the goods is carried out by the Vendor as a manufacturer in the sense of Article 950 of the BGB. No obligation on the part of the Vendor is hereby established. The goods that are created during this processing and manufacturing are deemed to be property to which the Vendor retains title in the sense of Clause 1.

3. In the event that the goods to which the Vendor retains title are processed, combined or mixed by the Vendee with other goods that are not the property of the Vendor, the Vendor becomes the co-owner of the new product. The share of the Vendor’s co-ownership is measured based on the ratio between the invoice value of the goods to which the Vendor retains title and the invoice value of the other goods used at the time the goods are processed, combined or mixed. In the event that the Vendor’s ownership of the goods lapses due to them being processed, combined or mixed, the Vendee hereby already assigns any future rights of ownership or entitlements to the newly produced product accruing to him/her to the Vendor based on the ratio between the invoice value of the goods to which the Vendor retains title and the invoice value of the other goods and holds them on the Vendor’s behalf free of charge. The goods that are co-owned by the Vendor are deemed to be goods to which the Vendor retains title in the sense of Clause 1.

4. The Vendee is entitled to continue to sell the goods to which the Vendor retains title as part of its normal business activities. The authorisation for the resale of the goods can be revoked if the Vendee does not comply with the terms of the contract. Claims resulting from the resale of the goods to which the Vendor retains title are deemed to have been ceded to the Vendor when these sales are concluded. If the Vendor is only the co-owner of these goods, the claims ceded to the Vendor correspond to the existing level of ownership at the time of the sale of the goods based on the ratio of the Vendor’s co-ownership of the goods to which it retains title and the co-ownership of third parties in the goods.

5. The Vendee is entitled to assert claims for payment from the resale of the goods in its own name. This entitlement ends if revoked by the Vendor. This revocation is permitted as a result of a sustained deterioration in the Vendee’s financial circumstances, at the latest when payments are suspended or when there is an application for or initiation of insolvency, bankruptcy and composition proceedings over its assets. If this entitlement is revoked, the Vendee is obligated to provide the Vendor on request with a precise list of claims to which the Vendee is entitled with the names and addresses of the customers, the amounts of the individual claims, invoice dates and other information required to assert these claims and to provide the Vendor with all information necessary for the assertion of the assigned claims.

6. The Vendee is not permitted to pledge or transfer ownership of either the goods to which the Vendor retains title or the assigned claims for payment. The Vendor must be notified of any seizures and immediately provided with the details of the creditor.

7. After withdrawing from the contract, the Vendor is entitled to take back the goods to which it retains title. Any existing claim for damages remains unaffected. In the event of the Vendor taking back the goods to which it retains title, it is entitled, after giving prior warning, to dispose of them and offset the proceeds against open claims for payment against the Vendee.

8. The Vendee shall hold the goods to which the Vendor retains title free of charge. The Vendee shall be responsible for insuring them to the usual extent against standard risks (e.g. fire, theft and water). If an insured event occurs, the Vendee hereby already assigns its claims against the insurance company in advance to the Vendor, who hereby accepts this assignment.

9. If the value of the Vendor’s existing security exceeds its entire claims by more than 20%, the Vendor is obligated upon request by the Vendee, or a third party adversely affected by this excess holding, to release securities, which can be selected at its own discretion.

Article 6 Warranty for defects

1. The Vendee shall inspect the delivery upon acceptance and then immediately notify the Vendor in writing about any defects. Subsequent complaints, particularly those relating to the quality, condition, dimensions, etc. of the goods, are excluded. Defects that were not recognisable during the proper inspection of the goods are to be immediately notified to the Vendor as soon as they are recognised in the normal course of business. Complaints about incorrect quantities or other shortfalls in the deliveries shall only be considered if they are raised immediately upon acceptance of the goods and recorded on the delivery note; subsequent complaints by the Vendee are excluded.

2. In the event of a material defect, the Vendor is entitled to choose – while taking into consideration the concerns of the Vendee – whether to rectify the issue in the form of a replacement delivery or by repairing the goods. If the Vendor fulfils its obligation to rectify the defect within an appropriate deadline, the Vendee shall not be entitled to demand a price reduction or the cancellation of the contract, insofar as the rectification measures have not failed to resolve the defect.

3. In the case of goods that are essentially manufactured by third parties, the Vendor’s liability is limited to the transfer of the claims under warranty to which the Vendor is entitled against the supplier of the goods. If it proves impossible to make a claim against the supplier for factual or legal reasons, the Vendor is liable in accordance with Article 7.

4. Further claims by the Vendee are based on the provisions in Article 7 of these General Terms and Conditions. The Vendee’s right to withdraw from the contract in accordance with Article 478 of the BGB, except for any claims for damages which are also based on the provisions in Article 7, remains unaffected.

Article 7 Liability and statute of limitations

1. In the event of a breach of its contractual and non-contractual duties, the Vendor – also including its executive employees and persons employed to perform these obligations – is only liable in cases of intent and gross negligence, although this is limited to the amount of damages typically foreseeable at the time the contract was concluded. Otherwise, the liability of the Vendor is excluded.

2. The limitations stated above in Clause 1 shall not apply in the case of a culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered, in case of culpable injury to life, body or health or if and insofar as the Vendor has provided guarantees for the condition of the goods sold, as well as in cases of mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz) or other legal regulations. Rules relating to the burden of proof remain unaffected.

3. The entitlement to make a claim for damages ends after a period of one year after delivery. This does not affect the legal statute of limitations specified for those types of goods that according to their customary purpose have been used for a building and have caused a defect in that building. The liability of the Vendor for intentional and grossly negligent breaches of duty, culpable injury to life, body or health, and the statute of limitations concerning the right of recourse in accordance with Article 478 of the BGB also remain unaffected.

Article 8 Arbitration clause, place of jurisdiction

1. All disputes relating to quality issues will be resolved, to the exclusion of the ordinary legal process, by means of the “Bremer Amicable Arbitration” (Bremer freundschaftliche Arbitrage) in accordance with the arbitration regulations issued by the Bremen Chamber of Commerce (in the current version dated 20.07.1998). The text for these arbitration regulations shall be provided by the Vendor at any time on request. The results of this quality arbitration process are thus binding for the Vendor and the Vendee even in the event of other or further disputes as part of the contractual relationship. For these other types of dispute, the ordinary legal process is thus agreed. The Vendee is obligated to participate in the above-mentioned quality arbitration process, even if on its part the legal validity of the purchase contract is disputed. The right of appeal due to the lack of legal validity of this arbitration process in subsequent court proceedings conducted under the ordinary legal process remains unaffected.

2. The exclusive place of jurisdiction for legal disputes pursued under the ordinary legal process for both parties are the local courts responsible for Korschenbroich.

3. German law shall apply exclusively.

Article 9 Place of performance

The place of performance for the delivery is Korschenbroich. This also applies when the Vendor is obligated to deliver the goods to a third location. The place of performance for the payment of the purchase price and for other services between the contractual parties, except for rectification and restitution as a result of withdrawal from the contract, is also Korschenbroich.

Article 10 Supplementary provisions

Business practices that are generally recognised under international or national law also apply as supplementary provisions provided that they do not contradict the above provisions. This also applies to the INCOTERMS in the currently valid version issued by the ICC Paris.

Article 11 Concluding provisions

Should individual provisions of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions or partial provisions shall not be affected. In this case, the invalid provision or partial provision shall be replaced by a regulation that the parties would have agreed if they had known about the invalidity of the provision. The same applies in the case of a loophole.

F. W. Barth & Co. GmbH
As of II/2010