General Terms and Conditions - BARTELS GmbH

Terms and Conditions of Sale, Delivery and Payment of BARTELS GmbH, Bergheimer Str. 26, 88677 Markdorf, Germany.

Rev. 01.06.2020

1. Scope of application

1.1 These General Terms and Conditions shall apply to all contracts and services that we conclude with contractual partners. Any deviating terms and conditions of purchase, procurement regulations or other general terms and conditions of the contractual partners shall be excluded unless we expressly agree to them in writing. If the contractual partner is an entrepreneur, these General Terms and Conditions shall also apply to future transactions with the contractual partner.

1.2 German law is agreed for the contractual relationships between Bartels GmbH and the contractual partners. Insofar as these General Terms and Conditions do not contain any provisions, the Civil Code and the Commercial Code of the Federal Republic of Germany shall apply in the version applicable at the time of conclusion of the contract. The application of the UN Convention on Contracts for the International Sale of Goods shall be excluded for all disputes arising from contracts concluded under these General Terms and Conditions.

1.3 We reserve our property rights and copyrights to our drawings and sketches, unless the contract provides otherwise.

1.4 In the case of orders which we execute on behalf of a purchaser, we shall not assume any liability for the infringement of third party property rights. The purchaser shall be responsible for checking these property rights in advance. He shall be solely liable in the internal relationship with us for the claims of third parties due to such infringements of property rights.

2. offers

2.1 Our offers are subject to change. Orders shall only be binding on us if we confirm them or comply with them by sending the goods. Verbal subsidiary agreements shall only apply if they are confirmed by us at least in text form.

2.2 Unless the Buyer specifies a different period, we shall be entitled to accept the Buyer's order within five working days of receipt by us. The acceptance period shall begin with the dispatch of the order by the Buyer. As a rule, acceptance shall be effected by sending an order confirmation.

3. place of performance/ duty of performance

The agreed prices are net, i.e. without value added tax. Unless otherwise agreed, the agreed prices do not include the costs for packaging and shipping as well as other costs (e.g. customs duties, insurance premiums).

3.2 Insofar as loading and shipping are expressly agreed, they shall be uninsured and at the risk of the recipient; insofar as the Buyer requests a specific type of shipping route and an agreement is reached on this, the Buyer shall bear the additional costs arising from this separately.

3.3 In the event of assembly by us, the Buyer shall bear the necessary ancillary costs, travel expenses and transport costs for material transport against proof of costs, unless otherwise stipulated in the contract.

3.4 As long as the Buyer is in arrears with a liability, we shall be entitled to assert a right of retention arising from the same contractual relationship and from further orders and to refuse performance in this respect until the arrears have been remedied.

4 Payment

4.1 Invoices are due without deduction 30 days after the invoice date.

4.2 Offsetting with counterclaims against our claims is excluded. This shall not apply to offsetting against claims that are undisputed, legally established or disputed but ready for decision.

4.3 Offsetting with counterclaims against our claims shall only be admissible if the intention to offset with the claim is announced in text form at least one month prior to the declaration of offsetting.

5 Delivery, Transfer of Risk

5.1 Compliance with agreed deadlines for delivery shall be subject to the timely receipt of the documents to be provided by the purchaser, necessary approvals and releases, in particular of plans, and compliance with the agreed terms of payment. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly, unless we are responsible for the delay.

5.2 Cases of force majeure shall suspend the contractual obligations of the parties insofar as they prevent their fulfillment, for the duration of the disruption and the extent of its effect. If the resulting delay exceeds the period of six weeks, we shall be entitled to withdraw from the contract with regard to the affected scope of performance.

5.3 If the Buyer is a consumer, the risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover of the goods. The Buyer's default in acceptance shall be deemed equivalent to the handover in accordance with the statutory provisions.

5.4 If the Buyer is a fully qualified merchant, the risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon proper handover of the goods to the carrier or transporter. At the request and for the account of the buyer, we will insure the goods against the usual transport risks. If delivery by delivery of the goods to the buyer by us has been agreed with the buyer, the risk shall pass upon handover. If delivery of the goods with assembly has been agreed with the Buyer, the risk shall pass upon completion of the assembly, but not before handover to the Buyer. Default of acceptance by the Buyer shall be deemed equivalent to handover and assembly in accordance with the statutory provisions.

6. assembly

6.1 The Purchaser shall, at its own expense, keep available and make available for the duration of the assembly and erection work the equipment required for assembly and commissioning, such as scaffolding, lifting gear, fuels, operating materials, lubricants, energy, water, heating and lighting, protective clothing and devices which are required at the assembly site due to special circumstances.

6.2 Insofar as third-party equipment is to be operated for the assembly, the Buyer shall provide sufficient authorized persons for the operation of the third-party equipment.

7 Warranty/Complaints

7.1 The Buyer shall notify us of any obvious defects in the goods or assembly within a period of 14 days from handover and, if applicable, assembly, at least in text form. A defect shall be deemed to be obvious if it is so obvious that even the average customer who is not a specialist will notice it without paying particular attention.

7.2 If the Buyer is an entrepreneur, he shall also notify us of any non-obvious defects of the goods or the assembly within a period of 2 months from handover and, if applicable, assembly, at least in text form. This shall not apply to such defects which were not recognizable during an inspection which is feasible in the ordinary course of the Buyer's business and which were not actually recognized. Such defects shall be notified to us immediately after their detection at least in text form.

7.3 Defects which are not notified in due form or time shall be excluded unless we have fraudulently concealed the respective defect. To comply with the deadline, it shall be sufficient to send the notification within the deadline.

7.4 Unless otherwise agreed, the following properties of the delivered goods shall apply in particular:

7.4.1 Sun sail systems: The sail fabrics, plastics, coatings and lines used may fade in color (and change their surface structure) due to environmental influences, in particular due to solar radiation. This is a natural process and an optical effect only, which has no influence on the technical function. Such optical changes do not constitute a material defect.

7.4.2 Stainless steel and aluminum components: Stainless steel and / or aluminum show surface traces of corrosion in case of mutual contact and / or contact with air containing salt and / or chlorine (especially at the seaside or in swimming pool areas). Ground stainless steel surfaces can show signs of corrosion due to abrasives trapped in pores, grinding dust or tool abrasion. In both cases, these are natural processes which are also only of an optical nature and do not affect the technical function. Such optical changes shall not constitute a material defect.

7.5 We shall only be liable for damages other than those resulting from injury to life, limb and health insofar as these damages are based on intentional or grossly negligent actions or also culpable breach of a material contractual obligation by us or our legal representatives or vicarious agents. An essential contractual obligation is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the purchaser may regularly rely. Any further liability for damages shall be excluded unless such liability is based on a guarantee given by us for the quality of the object of purchase or on the Product Liability Act or is based on the fact that we have relied in a special way, unless the exclusion of liability constitutes an unreasonable disadvantage to the Buyer for other reasons. In such cases, however, damages shall be limited to the typically foreseeable damage.

7.6 Claims against us under warranty law shall become statute-barred one year after the statutory commencement of the limitation period. This shall not apply to the limitation of claims against us due to a defect in the cases of § 438 I No. 2 or § 634 a I No. 2 BGB (German Civil Code), i.e. due to a defect in a building or a defect in a work which has been used for a building in accordance with its customary manner of use and has caused the defectiveness thereof or in a work the success of which consists in the provision of planning or supervisory services for a building, as well as for claims under warranty law of consumers, unless the goods delivered and/or assembled by us to the consumer were already used as agreed.

8. retention of title

8.1 Until full payment of our claims arising from the business relationship with the Buyer, insofar as these are still outstanding at the time of delivery of the goods, the delivered goods shall remain our property. However, we agree that the Buyer shall be authorized to dispose of them in the ordinary course of business.

8.2 The retention of title shall also extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer in this respect. If, in the event of processing, mixing and combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed goods. In this case, the Buyer shall hold the sole or co-ownership for us and shall be obliged to adequately insure the reserved goods against foreseeable damage (fire, water, theft).

8.3 The Buyer hereby assigns to us as security any claims against third parties arising from the resale in total or, in the event of processing, mixing and combining with goods of third parties, in the amount of our possible co-ownership share. In addition to us, the Buyer shall be authorized to collect the receivables until we revoke this authorization. The Buyer shall not be entitled to assign the claims; this shall also apply for the purpose of collecting the claims by way of factoring, unless the obligation of the factor is simultaneously established to effect the counter-performance in the amount of our share of the claim directly to us as long as there are still claims on our part against the Buyer.

8.4 The Buyer shall notify us without undue delay, at least in text form, of any seizure by third parties of the goods receivables belonging to us.

8.5 The exercise of the retention of title by us does not automatically mean the withdrawal from the contract.

8.6 The goods delivered by us or the claims replacing them may not be pledged to third parties or assigned or transferred by way of security before our claims have been settled in full.

8.7 If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the request of the customer.

9. place of jurisdiction

The place of jurisdiction for all legal actions arising from contracts concluded under these General Terms and Conditions is 88677 Markdorf, Germany.

10. severability clause

Should any provision of these General Terms and Conditions be invalid or unenforceable, the remaining provisions shall remain in full force and effect unless the omission of individual clauses would put a contracting party at such an unreasonable disadvantage that it can no longer be expected to adhere to the contract.