General Terms and Conditions of Barkey GmbH & Co. KG
I. AREA OF APPLICATION
1. The Conditions of Sale set forth below are applicable to the entire business relationship with our purchasers. The purchaser acknowledges them as binding for the present contract and also for fu-ture transactions. Any diverging agreement shall be subject to our written acknowledgement. The purchaser’s terms and conditions of purchase will not become a part of the contract.
2. These conditions are only applicable to independent contractors as defined in section 14 of the BGB (Civil Code), public-law entities or public-law special funds pursuant to section 310 of the BGB. Independent contractors in the meaning of section 14 of the BGB are natural or juridical per-sons or partnerships with legal capacity acting in the exercise of their trade or self-employed pro-fessional activity when it comes to concluding the legal transaction.
3. The terms will apply only if the purchaser’s relevant Place of business/place of delivery is located outside the Federal Republic of Germany.
II. OFFERS, EXTENT OF PERFORMANCE
1. Our offers are non-binding. Oral agreements and agreements by telephone are only binding if we have confirmed them in writing.
2. The documents which belong to our offers, such as pictures and drawings, and indications of measurements or weight are only approximate, unless we have explicitly declared them as binding.
3. The extent of performance is determined by our written order confirmation. If such a confirmation does not exist, our offer is decisive. Side agreements and amendments are only valid if confirmed in writing by us.
III. DELIVERY, TIME OF DELIVERY
1. The times of delivery stated in our order confirmations or otherwise agreed upon with a purchaser are decisive. The compliance with these times requires that any materials, payments or specifications which are to be supplied by the purchaser are received in due time. If these prerequisites are not met in due time, the period for delivery is extended by the duration of the delay.
2. The period for delivery is deemed as having been complied with, if the consignment has been sent or collected within this period. If the handover is delayed due to reasons for which we are not responsible, the period for delivery is deemed as having been complied with if the completion of the goods or their readiness for dispatch has been announced within the period of delivery.
3. Partial deliveries are admissable to an extent which is reasonable for the purchaser.
4. If we are impeded from complying with our obligations by unforeseeable extraordinary circumstances, which we could not avert despite taking the care reasonable in the case, regardless of whether the circumstances affect our factory or our suppliers – e. g. disruptions of the operation, interventions by authorities, difficulties with energy-supply – the period for delivery is, if the delivery or performance has not become impossible, extended by the duration of the impediment. If the delivery or performance becomes impossible by the circumstances mentioned above, we are released from our obligation to deliver.
5. The period for delivery is also extended to a reasonable extent in case of strike or lockout. If the delivery or performance becomes impossible we are released from our obligation to deliver. If, in the cases mentioned above, the period for delivery is extended by more than one month, the purchaser is entitled to withdraw from the contract. Claims for damages are excluded. If the aforementioned circumstances affect the purchaser, the same legal consequences apply for his obligation to accept the goods. We can only rely on the aforementioned circumstances if we have notified the buyer immediately.
6. If the dispatch or the delivery is delayed upon the purchaser´s request, we may, beginning one month after notification of completion or readiness for dispatch, request a storage fee in the amount of one half percent of the net amount of the invoice for each month or part thereof. The storage fee is limited to five percent of the net amount of the invoice, unless we prove higher costs.
IV. PRICES AND CONDITIONS OF PAYMENT
1. Our prices are valid ex works (EXW Incoterms 2020). If changes in the prices of materials orchanges in wages occur four months after the conclusion of the contract or later, we may increase the price accordingly.
2. Our invoices are payable within eight days of the invoice date, unless agreed otherwise.
3. All duties, fees, taxes, costs for technical examinations etc., which accrue outside the Federal Republic of Germany, have to be borne by the purchaser. This also applies for the costs of any legalisation of documents, invoices from consulates etc.
4. A set-off with counterclaims or the assertion of rights of retention is admissible in as far as the purchaser´s claims are undisputed or have become res judicata.
5. We expressly reserve the right to deny cheques or bills of exchange. Acceptance will only be made on account of performance.
V. RESERVATION OF TITLE
We retain title to the goods until full payment has been made for all claims, under our business relation-ship with the purchaser and until the encashment of all cheques and bills of exchange.
VI. PACKAGING AND SHIPMENT
1. Shipment will be made ex works EXW (Incoterms 2020). Packaging will be made in accordance with technical requirements and as customary in trade. Where the packaging is provided, we will not grant any warranty for possible damages caused by defective packaging.
2. Special packaging and replacement packaging will be charged at cost price.
VII. TRANSFER OF RISK
1. The risk of accidental loss and accidental deterioration of the goods shall pass upon its delivery, in case of shipment upon the delivery of the goods to the forwarder, carrier or other persons appointed for the execution of the shipment.
2. The same applies to returns, if any, by the purchaser.
3. Shipment insurance will be charged at a rate of 1‰ of the value of the goods. The insurance will only be taken out on the purchaser’s request and at his expense.
VIII. Quality Defects
1. The products shall be deemed to be defective if the purchaser can prove, that they differ
considerably with regard to packaging, quantity or quality from the requirements stated in the written order confirmation or if they are not suitable for the generally intended use in the Federal Republic of Germany due to the lack of agreements. The goods shall be deemed to conform with the agreed quality if the legal requirements applicable at the place of business of the purchaser do not impair the customary use of the products. Any further agreed characteristics of quality of the goods shall remain unaffected.
2. We shall not be liable for any non-conformity occurring after the passing of risk. We are not responsible in respect of any defect due to failed use, maintenance or modifications of the goods, use of unsuitable spare parts, defective installation by the purchaser natural wear and tear or damage or any other external influences to attributable to us.
3. The purchaser shall be obligated to examine the goods in accordance with legal provisions and check each consignment with regard to identifiable or typical lack of conformity of goods.
4. In case of delivery of non-conforming products we shall at our option either repair any defect or replace any products or any part thereof that are non-conforming. The purchaser has to give us ad-equate time and opportunity to remedy the defect. The purchaser will grant us access to the prod-ucts. Additional costs incurred by us due to any relocation of the goods to a place other than the original place of destination shall be borne by the purchaser.
5. The purchaser shall have the right to a reduction of the contract price once either two attempts to remedy the defect have failed or if we have not undertaken such remedial measures within a rea-sonable time after receipt of a notice from the purchaser, indicating the defect and lapse of an addi-tional final respite set by the purchaser. The same shall apply for any claim for damages in lieu of performance. If the quality defect amounts to a fundamental breach of contract, the purchaser is in this event alternatively entitled to declare the contract avoided subject to any further preconditions and restrictions set forth by the applicable law.
6. Any and all remedies of the purchaser for any quality defect are conditional upon prompt notice to be given by the purchaser no later than fourteen (14) calendar days after the purchaser has discovered or ought to have discovered the defect in accordance with his duty to examine the goods. The period of time for the examination of the goods shall in any event not exceed a period of ten (10) days commencing upon the handover of the goods. The purchaser shall not be entitled to relay on any excuse for his failure to give the required notice. We are not entitled to relay on this if the lack of conformity relates to facts that we have of ought to have been aware of at the time of handover of the goods and which we did not disclose to the purchaser.
IX. Defects of title
1. The goods shall only have a deficiency in title if they are not free from enforceable rights of third parties that exist already at the time of transfer of risk. Such rights shall only be deemed to consti-tute defects of title to the extent that
a. the intellectual property right is registered in the country of use specified in the contract and such right is based on identical invention disclosed and claimed in a property right registered and made public in Germany and
b. the ordinary use of the goods as foreseen in the contract by the purchaser is hereby impeded.
2. If the purchaser’s use of the products is excluded, we may at our discretion and cost either
- procure for the purchaser the right to use the goods or
- provide with a non-infringing replacement product or modify the goods so that they become non- infringing provided the replacement product / modified product meets substantially the same functional specifications as the product or
- refund the purchase price to upon return of the product less a reasonable amount of depreciation for any period of use of the product.
If we do not undertake such measures within a reasonable time after having received the notice of default by purchaser, he may declare the avoidance of the contract and, subject to para. XI. claim damages.
3. We shall only be liable for any defect of title if the purchaser gives prompt written notice, neither consents to any judgement or decree nor undertakes any other act in compromise without our writ-ten consent. We are not entitled to relay on a delay notice if we knew of the right or claim of a third party and the nature of it at the time of handover of the goods.
X. Annulment of Contract
1. Should the purchaser claim delivery of substitute goods, repair or other performance, he shall be bound to this remedy for a reasonable period. Annulment of the contract shall in this case be excluded. The contract can only be cancelled if the purchaser announced to rescind the contract in writing and if a reasonable period of grace set by the purchaser has expired unsuccessfully. Anyfurther legal requirements pertaining to the cancellation of contract shall remain unaffected.
2.We shall be entitled to avoid the contract
- if the purchaser objects to the validity of these International Terms of Business,
- if the purchaser fails to fulfil essential obligations owed to us or any third party without a justifiable reason,
- if the purchaser has given incorrect particulars regarding his credit standing or
- if for other reasons we cannot ensure performance of our obligations under reasonable conditions and the non-fulfilment, in particular with regard to the agreed consideration, is not unreasonable for the purchaser.
XI. Damages
1. Our contractual und extra-contractual liability for damages shall be subject to the subsequent provisions.
2. The purchaser shall be obligated to assert other legal remedies first. He shall only be able to claim compensation for remaining disadvantages, however, not instead of other legal remedies.
3. If we are liable for damages we will indemnify the purchaser subject to the limits stated below. We will only compensate for damages which have been proven by the purchaser, which could not be prevented by him and which had been foreseeable as a consequence of the infringement of the con-tract as regards the occurrence of the damage and its extent. Prior to the conclusion of the contract the purchaser shall be obligated to inform us in writing of any particular risks, atypical contingencies and any excessive damage. The purchaser shall also be obligated to minimize damages in the event of a recognizable infringement of a contractual obligation.
4. We shall not be liable for loss of profit or non-pecuniary damage. The purchaser has to prove that the loss was unavoidable for him. We shall not be liable for damages not foreseeable for us at the time of the formation of the contract in respect of its occurrence and its extent.
5. Claims for compensation shall be limited to 200 % of the respective delivery value.
6. The limitation of liability shall not apply if the damage has been caused by intentional or gross negligent conduct of our executive bodies or directors. Irrespective of the applicable law as agreed upon below, the aforementioned provisions shall not apply if we are under a statutory liability.
7. The aforementioned limitations of liability shall also apply to the personal liability of our members of staff, employees, workers, agents or vicarious agents.
XII. Limitation
1. All claims for defects as to quality or title shall be time-barred 12 (twelve) months after handover of the respective product.
2. Insofar as the limitation period may not already have barred the claim, claims for damages brought by the purchaser are excluded after one year starting with the rejection of the claim by us, at the lat-est after having accrued.
XIII. Applicable law, arbitration clause
1. The legal relationship of the parties are governed by German law with the inclusion of the United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods.
2. Place of performance for delivery and payment shall be Leopoldshoehe, Federal Republic of Germany.
3. All disputes arising art or in connection with a contract between the parties or its validity shall be finally settled in accordance with the arbitration rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Frankfurt/Main. The language of the arbitration shall be English.