General Terms and Conditions of Business of Barth Elektronik GmbH

  1. General provisions
    1. The written declarations of both parties shall be authoritative for the scope of the deliveries and services (hereinafter referred to as "Deliveries"). Conflicting or deviating General Terms and Conditions of Business of the Purchaser shall only apply to the extent that the Supplier or performing party (hereinafter referred to as "Supplier") has expressly agreed to them in writing.
    2. With regard to quotations, drawings and other documentation (hereinafter referred to as "Documentation"), the Supplier shall reserve all property rights and copyrights without restriction. The documents may only be made available to third parties with the Supplier's prior consent and must be returned without delay upon request if the order is not placed.
    3. Partial deliveries are permissible insofar as these are reasonably acceptable for the Purchaser.
  2. Prices and terms of payment
    1. All prices are ex works excluding packaging and the applicable statutory sales tax unless specified otherwise.
    2. Payments are to be made free of charge to our payment office.
  3. Retention of title
    1. The items of the supplies shall remain the property of the Supplier until fulfilment of all claims against the Purchaser arising from the business relationship. Insofar as the value of all the security interests to which the Supplier is entitled exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.
    2. During the existence of the retention of title, the Purchaser is prohibited from pledging or assigning the goods as security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that his property is only transferred to the customer when the latter has fulfilled his payment obligations.
    3. In the event of seizures, confiscations or other disposals or interventions by third parties, the Purchaser shall notify the Supplier without delay.
    4. In case of breaches of duty by the Purchaser, in particular in case of default of payment, the Supplier shall be entitled to withdraw from the contract and to take back the goods following the unsuccessful expiry of a reasonable deadline set for the Purchaser. The Purchaser is obliged to surrender the goods.
  4. Deadlines for deliveries; default
    1. Adherence to deadlines for deliveries requires the timely receipt of all documents, requisite approvals and releases, in particular of plans, that are to be provided by the Purchaser, as well as adherence to the agreed terms of payment and other obligations on the part of the Purchaser. If these requirements are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
    2. If the failure to adhere to deadlines is attributable to force majeure, e.g. mobilisation, war, riot or similar events such as strikes or lockouts, the deadlines shall be extended to a reasonable extent.
    3. Both claims for damages on the part of the Purchaser due to a delay in delivery as well as claims for damages in lieu of performance are excluded in all cases of delayed delivery even after the lapse of a deadline set for the Supplier for delivery. This does not apply if liability is mandatory in cases of intent, gross negligence or injury to life, body or health. The Purchaser may only withdraw from the contract within the scope of the statutory provisions insofar as the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
    4. At the Supplier's request, the Purchaser shall be obliged to declare within a reasonable period of time whether he shall withdraw from the contract due to the delay in delivery or shall insist on delivery.
  5. Transfer of risk
    1. The risk shall also be transferred to the Purchaser in the case of carriage paid delivery if the delivery has been delivered or collected.
    2. If dispatch, collection, commencement, installation or assembly, acceptance in the Purchaser's own company or trial operation is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for other reasons, the risk shall be transferred to the Purchaser.
  6. Acceptance
    1. Negligible deficiencies do not justify a refusal of acceptance by the Purchaser.
  7. Material deficiencies
      The Supplier shall be iable for material deficiences as follows:
    1. All those parts or services that display a material deficiency within the limitation period – irrespective of the operating time – shall, at the Supplier's discretion and free of charge, be repaired, re-delivered or rendered again provided that the cause of the deficiency had already existed at the time of the transfer of risk.
    2. Claims for material defects shall become time-barred after 12 months. This shall not apply if the law in accordance with §§ 438 Paragraph 1 No. 2, 479 (1) and 634a Paragraph 1 No. 2 of the German Civil Code prescribes longer deadlines as well as in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty on the part of the Supplier, and in the event of fraudulent concealment of a deficiency. The legal provisions regarding suspension of expiration, suspension and recommencement of limitation periods shall remain unaffected.
    3. The Purchaser shall immediately notify the Supplier in writing about any material deficiencies.
    4. In the case of complaints, the Purchaser may withhold payments to an extent that is in reasonable proportion to the material deficiencies that have occurred. The Purchaser may only withhold payments if a complaint has been asserted about whose justification there can be no doubt. If the complaint was unjustified, the Supplier shall be entitled to demand reimbursement by the Purchaser of the expenses incurred by him.
    5. The Supplier shall first be given the opportunity to remedy the deficiency within a reasonable period of time.
    6. If the subsequent performance should fail, the Purchaser may – without prejudice to any claims for damages pursuant to Clause 10 – withdraw from the contract or reduce the remuneration.
    7. Warranty claims shall not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of the usability, natural wear and tear, or damage that occurs after the transfer of risk due to faulty or negligent handling, excessive stress, unsuitable operating resources, or due to unusual external influences that are not assumed pursuant to the contract, as well as in the case of non-reproducible software or firmware errors. If the Purchaser or third parties carry out improper modifications or repair work, warranty claims shall also not exist for such work and the resultant consequences.
    8. Claims on the part of the Purchaser due to expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded.
    9. Clause 9 shall otherwise apply for claims for damages. Further claims, or claims other than those regulated in this Clause 7, asserted by the Purchaser against the Supplier and his vicarious agents due to a material deficiency are excluded.
  8. Industrial property rights and copyrights; defects of title
    1. Unless agreed otherwise, the Supplier shall be obliged to render delivery free of any industrial property rights and copyrights of third parties only in the country of the place of delivery (hereinafter referred to as: Property Rights). Insofar as a third party asserts justified claims against the Purchaser on account of the infringement of industrial property rights by deliveries rendered by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the set time limit stipulated in Clause 7.2 as follows:
      a) The Supplier shall, at own discretion and expense, either obtain a right of use for the deliveries concerned, alter them in such a way that the property rights are not infringed, or replace them. Should this not be possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal and reduction.
      b) The Supplier's obligation to pay damages shall be governed by Clause 9
      c) The aforementioned obligations on the part of the Supplier shall only exist if the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement, and all defensive measures and settlement negotiations are reserved for the Supplier. If the Purchaser discontinues the use of the delivery for reasons of damage reduction or other important reasons, he shall be obliged to inform the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of industrial property rights.
    2. Claims on the part of the Purchaser shall be excluded insofar as the Purchaser is responsible for the infringement of the industrial property rights.
    3. Claims on the part of the Purchaser shall also be excluded if the infringement of industrial property rights is caused by special requirements of the Purchaser, by a usage that could not be foreseen by the Supplier, or by the fact that the delivery will be modified by the Purchaser or used together with products not delivered by the Supplier.
    4. In the event of infringements of industrial property rights, the provisions of Clauses 7.4, 7.5 and 7.8 shall apply accordingly to claims by the Purchaser as regulated in No. 8.1 a).
    5. In the case of other defects of title, the provisions of Clause 7 shall apply accordingly.
    6. Further claims, or claims other than those regulated in this Clause 8, asserted by the Purchaser against the Supplier and his vicarious agents due to a defect of title are excluded.
  9. Other claims for damages
    1. Claims for damages and reimbursement of expenses on the part of the Purchaser (hereinafter: Claims for Damages) regardless of the legal grounds, in particular due to a breach of obligations arising from the contractual relationship and tort, are excluded.
    2. This shall not apply where liability is mandatory. Claims for damages for the breach of essential contractual obligations shall, however, unless there is intent or gross negligence or liability is incurred due to injury to life, body or health, be limited to the foreseeable damage typical of the contract.
    3. Insofar as the Purchaser is entitled to assert claims for damages pursuant to this Clause 9, such claims shall become statute-barred upon expiry of the limitation period applicable to claims for deficiencies pursuant to Clause 7.2. In the case of claims for damages under the German Product Liability Act, the statutory limitation provisions shall apply.
  10. Place of jurisdiction and applicable law
    1. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the Supplier. The Supplier shall, however, also be entitled to take legal action at the registered office of the Purchaser.
    2. German substantive law shall apply to the legal relations in conjunction with this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  11. Binding nature of the contract
    1. The contract shall remain binding in its remaining parts even if individual provisions of the contract are legally ineffective.

Special Terms and Conditions of Contract for purchasing and production by samples (BVKHMuster)

  1. General provisions
    1. The Special Terms and Conditions of Contract for purchasing and production by samples (BVKHMuster) shall apply to contracts between BARTH Electronics GmbH (hereinafter: BARTH) and a third party (hereinafter: Principal) who have the purchase of an item to be manufactured by BARTH according to a certain sample as subject matter of the contract.
    2. The General Terms and Conditions of Business of BARTH shall apply in principle and exclusively unless otherwise provided for in the preceding BVKHMuster or the explicit contractual provisions preceding this.
  2. Purchasing and production by samples
    1. Prerequisite for the conclusion of a contract for purchasing and production by samples is compellingly a prior written offer from Barth. Verbal offers are excluded and have no validity.
    2. The object of the offer submitted by BARTH is exclusively the sample that is comprehensively described in full and illustrated with the offer and the associated documents, as well as the prototype presented with the offer. Objections concerning a defective nature of the purchased item attributable to incompleteness of the sample description or the prototype are excluded after placement of the order by the Principal.
    3. BARTH shall provide the Principal with a sample form with the offer for placement of the order.
      Orders placed with BARTH on the basis of purchasing and production by samples can only be submitted on this order form.
      The Principal must complete the order form in full and sign it with legally binding force and, if available, mark it with a company stamp. Orders placed in any other manner or incomplete order placement forms shall be deemed to be a new offer by the Principal which has be accepted by BARTH. BARTH expressly reserves the right to accept an order that has not been submitted on the order placement form or an order placed with an incomplete order placement form. The burden of proof of acceptance by BARTH lies with the Principal.
      Non-legally binding signed orders shall be considered as not having been received.
    4. BARTH shall be entitled to object in writing to the placement of an order within 10 days of receipt by BARTH of the order form. Authoritative for the deadline is the date the offer was sent by BARTH. An objection sent by fax or email is sufficient.
      In the event of a timely objection, the contract shall be deemed not to have been concluded from the outset.
  3. Sample
    1. Authoritative for the obligations of the parties arising from the contract for purchasing and production by samples shall be solely the prototype that has been manufactured by BARTH and presented together with the offer and the associated documents and, where applicable, the prototype produced for this purpose. Unless expressly requested by the Principal in writing, BARTH shall not obliged, but shall be entitled, to create a prototype of the offered sample. The Principal is obliged to provide BARTH, comprehensively and in full, with all the information relevant for producing the sample or prototype, in particular information about the technical requirements and prerequisites, the demands on performance, design, appearance, haptics, the materials to be used, and the intended use of the object. After placing the order, the Principal may not claim that BARTH, for whatever reason, did not provide all the information relevant to the production of the sample, prototype or purchased item.
    2. Insofar as a prototype is produced by BARTH as a sample and made available to the Principal with the offer for inspection and testing, it is incumbent upon the Principal to examine the sample or prototype for material deficiencies (e.g. completeness, functionality and absence of deficiencies, optical and technical equivalence (performance) with the Principal's ideas, etc.). Insofar as material deficiencies of the prototype have not been reported, the sample and the prototype shall be deemed to have been accepted upon placement of the order. Liability on the part of BARTH for concealed deficiencies or fraudulent intent shall remain unaffected.
  4. Material deficiencies
    1. The rights of the Principal on the account of a material deficiency of the articles produced by BARTH and delivered to the Principal following placement of the order are governed by the General Terms and Conditions of BARTH and the legal provisions.
    2. A material or legal deficiency shall not exist if the article produced by BARTH and delivered to the Principal following placement of the order corresponds to the accepted sample or the prototype produced before the order was placed and accepted by the Principal at the time the order was placed.
      Minor deviations which do not influence the functionality, appearance and performance capability of the article in accordance with the usage of the article as known to BARTH are not deficiencies.
    3. Insofar as the Principal has not made sufficiently concrete specifications with regard to the materials to be used, performance, design, optics, haptics, etc., the Principal may not object to the fact that BARTH has provided an article of only average type and quality in accordance with the intended usage thereof by the Principal as known to BARTH.
    4. Claims for compensation on the part of the Principal where the goods delivered comply with the accepted sample or prototype are excluded. Minor deviations which do not influence the functionality, appearance and performance capability of the article in accordance with the usage of the article as known to BARTH shall not represent grounds for non-compliance.
    5. BARTH shall only be liable for damage caused by concealed deficiencies in the sample or prototype which are found in the delivered item if they are caused by intent or gross negligence. Liability for ordinary negligence is excluded.
  5. Industrial property rights and copyrights, ownership of prototypes
    1. All rights to samples and prototypes produced by BARTH as well as to plans and descriptions of samples and prototypes are exclusively reserved by BARTH unless agreed otherwise between the contracting parties by written individual agreement.
    2. Material samples and prototypes as well as related plans and descriptions are the exclusive property of BARTH. The Principal shall not acquire ownership of samples, prototypes, plans, and descriptions produced prior to placement of the order unless agreed otherwise in writing by individual agreement. Insofar as BARTH does not explicitly waive them, all samples and prototypes, as well as plans and descriptions, are to be returned to BARTH following delivery of the ordered article.
    3. Samples and prototypes may only be passed on to third parties by the Principal subject to explicit, prior written consent of BARTH. Reproductions are not permitted.
  6. Invalidity of single provisions
    1. Should single provisions of the contract or its parts, including parts of the General Terms and Conditions or this BVKHMuster be legally invalid, the contract including the effective parts of the General Terms and Conditions and the BVKHMuster shall persist in its remaining parts. The statutory provisions shall apply in place of the ineffective parts.
 
BARTH Elektronik GmbH
Im Depot 1-3
D-49838 Lengerich / Emsland
Commercial register Osnabrück HRB 100983
 
Last updated: May 2004