§ 1 General
These terms and conditions apply only for business dealings with enterprises; for consumers,
the statutory regulations on the sale of goods apply.
The following conditions apply exclusively for all our offers, sales and deliveries. Upon
placing an order, the ordering party (hereafter orderer) declares that they accept these terms
unconditionally. Deviating terms are only valid after mutual agreement and they must be in
written form. Amendments to individual conditions have no affect on others. Contradictions
offered by the orderer based upon the validity of their own standard business or ordering
conditions are not valid. Rights and responsibilities contained in the sales contract may not
be transferred to others without our explicit permission. Pending an agreement to the
contrary, these terms and conditions are valid for all current and future commercial
transactions, including individual purchase orders placed within existing business
relationships in the absence of specific references.
These conditions are also in effect when a delivery is received and accepted. The most
current version of these conditions can be found and downloaded at www.burkert.com.
§ 2 Offers
Offers are always non-binding, even when this has not been specifically agreed to.
§ 3 Orders
Orders are only considered accepted after they have been confirmed by us in writing. If
delivery is made immediately without prior confirmation, then the invoice also serves as order
§ 4 Prices
Our prices are subject to change without notice and are valid from the point of delivery
excluding packing, postage, shipping and forwarding charges, insurance, customs and
assembly. In the event that the costs of wages, raw materials, freight forwarding, taxes,
customs, charges or other financial burdens increase or if new burdens take effect between
contract signing and delivery, we shall be entitled to impose a fair and reasonable price
increase to the extent allowed by law. The amount of goods ordered is decisive for such
§ 5 Delivery
We reserve the right to set a delivery time for each individual order. The delivery time is also
considered met when the buyer is notified in time that the goods are ready for dispatch, even
if dispatch is made impossible through no fault of the seller. Partial deliveries may not be
refused by the orderer. A commitment to fulfil specified delivery dates can only be made if
the production cycle is unimpeded. We reserve the right to suspend or cancel delivery
obligations due to the effects of force majeure events, production breakdowns, strikes,
lockouts, government measures and/or lack of raw materials as well as other unpredictable
conditions at our facilities or those of our suppliers at the time of production. Failure to
comply with confirmed delivery terms is not a basis for damage claims or order cancellation.
We are allowed, but not obligated to subsequently deliver non-delivered items. Liability
claims arising from non-compliance or delayed delivery are not allowed. Liability for the
goods becomes the responsibility of the orderer upon dispatch from the factory or notification
of readiness for dispatch. In the absence of specific instructions, the shipping route and
method are chosen using our best judgment and we do not assume liability for the least
expensive and most expedient shipment method. Shipping is always at the risk of the
orderer, including free-of-charge delivery and in cases of ownership retention. Unless
otherwise agreed, packaging is chosen by us. It is calculated according to valid pricing. In the
event of a free-of-charge return shipment of goods in good condition and within four weeks,
two-thirds of these costs will be credited.
§ 6 Complaints
Notice of defects regarding weight, amount, goods or the makeup of the goods can only be
considered when they are reported to us in writing immediately after being discovered, but no
later than one week after receipt at the destination. This does not apply to conditions
excluded in our conditions of sale. Defects that cannot be detected by immediate
examination within this time limit are to be reported immediately after discovery.
§ 7 Claims based on defects
We guarantee that our products are free from manufacturing and material defects at the time
of transfer of risk.
Claims based on defects become statute-barred 12 months after delivery of the goods
supplied by us to our orderer. For claims for damages caused intentionally or due to gross
negligence and in the case of injury to life, limb or health based on intentional or negligent
breach of duty on the part of the user, the statutory limitation period applies.
Insofar as the law pursuant to § 438 para. 1, no. 2 BGB (Buildings and articles for buildings),
§ 479 para. 1 BGB (Right of recourse) and § 634a para. 1 BGB (Construction defects)
provides for mandatory longer periods, these periods apply.
If, despite all care exercised, the delivered goods should contain a defect that already existed
at the time of the transfer of risk, we will, at our choice, rectify the defect or deliver a
replacement, subject to timely notification of defects. We shall in any case be given the
opportunity of remedy within a reasonable period. Rights of recourse are not affected by the
above stipulation, without restrictions.
If the remedy fails, the orderer – notwithstanding any claims for damages – can cancel the
contract or demand a reduction in price.
Claims based on defects do not exist in the case of slight deviation from the agreed quality,
in the case of only slight impairment of usefulness, in the case of normal wear and tear and
in the case of damages that occur after transfer of risk due to incorrect or negligent handling,
excessive strain, unsuitable operating resources or due to special external influences that
are not provided for by the contract. In the case of repairs or modifications that are carried
out improperly by the orderer or third parties, claims based on defects likewise do not exist
for these repairs or modification and the resulting consequences.
Claims on the part of the orderer for expenses required for the purpose of remedy, in
particular transport, labour and material costs, are excluded insofar as the expenses
increase because the goods delivered by us are subsequently moved to a location other than
the orderer’s place of business, unless the relocation of the goods is in accordance with their
normal use. Return of the goods must be coordinated with us in advance.
Rights of recourse on the part of the orderer against us exist only insofar as the orderer has
made no agreements with his customer beyond the mandatory statutory claims for damages.
For the scope of the orderer’s right of recourse against the supplier, the stipulation in
accordance with the preceding paragraph applies accordingly, in addition.
§ 8 Claims for damages
Our liability, regardless of the legal basis, is limited to damages that we or our vicarious
agents have brought about intentionally, due to gross negligence or through breach of
essential duties due to slight negligence.
In cases of slightly negligent breach of essential duties for fulfilment of the contract purpose,
our liability is limited in amount to the typical damages in the case of comparable
transactions of this type that were foreseeable at the time of conclusion of the contract or
upon committing the breach of duty, at the latest.
Liability for damages beyond that defined above is – to the extent permitted by law –
Claims for damages based on product liability law, due to lack of a guarantee of quality and
due to injury to life, limb or health or due to other mandatory statutory provisions remain
unaffected by this clause.
The above stipulation is not related to a change in the burden of proof to our disadvantage.
§ 9 Technical Application Advice, Right to Amend
Application, use and processing of the goods obtained are the exclusive responsibility of the
purchaser. Both written and verbal technical application advice on our part only serve as
non-binding information, also concerning third-party intellectual property rights. The
purchaser shall not be released from inspecting the goods supplied with respect to their
applicability for intended procedures and purposes. If a question of liability on our part arises,
then the liability amount, insofar as permitted by law, is limited to the value of the goods
delivered by us. We reserve the right to modify designs.
§ 10 Reservation of Title
Ownership is transferred to the purchaser only after all debts pertaining to the existing
business relationship have been settled. Checks and bills of exchange will only be accepted
on account of payment. Therefore, ownership of each item is only transferred to the
purchaser with the final satisfaction of the debt. Payment by cheque with simultaneous
justification of a debt-equity ratio using bills of exchange does not count as final satisfaction
of the debt. Retention of ownership is maintained even if the received goods or associated
parts are installed in another object. In point and fact, it is regarded as agreed that a state of
value-ratio co-ownership exists. The customer has the right, in the normal course of
business, to continue to use or to sell the goods to which title is retained. However, the
customer may not pledge or use the goods as collateral. In the event that the item is re-sold
or processed, the original purchaser immediately cedes all claims up to the amount of the
outstanding invoice to us. This includes ancillary rights against third-party debtors and allows
us to collect the proportion of the debt owed from the invoice.
In the event that the original purchaser collects the ceded claim themselves, then it is done
for us in trust. The proceeds collected for us are to be given to us immediately. At our
request, the original purchaser is obligated to inform the second purchaser of the assignment
of claims and to provide us with the necessary information required to assert our claim
against the second purchaser. The original purchaser must immediately inform us about
garnishment or any other impairment of our rights by third parties. If the second purchaser
does not immediately pay in cash, then the original purchaser must ensure that our reserved
title status is transferred and continues to remain in effect.
§ 11 Payment
Payment must be made strictly net, with no transfer fees, to our payment office within 30
days after the invoice issue date. However, payment in full is immediately due if the
purchaser is in arrears with other open bills, or if we are unsure of the purchaser´s financial
status due to knowledge of bankruptcy filing, out-of-court settlement, protested bills,
enforcement by writ, loss of financial sponsorship or other events listed in §321 BGB
(German Civil Code). In such cases, we retain the right to perform outstanding deliveries only
against prepayment or to withdraw from the contract. A discount of 2% is applied to
payments made within 8 days after the invoice date. Such a discount is only applied if open
bills connected to this and any other previous orders have been satisfied. In cases where
multiple bills are outstanding, incoming payments will always be applied to the oldest open
bill, regardless of instructions from the purchaser. A separate agreement must be made
regarding the acceptance of bills of exchange. Bills of exchange or cheques are accepted
under reservation and are not considered as cash payment before complete encashment.
Discount charges must be paid for in cash. If the 30-day target is exceeded, default occurs
without prior issue of a reminder. Default interest equivalent to the current bank rate for
overdrafts must be paid. The purchaser is not entitled to withhold or offset payments as a
result of any counter claims.
§ 12 Drawings
Drawings, documents and drafts may not be disclosed to third parties by the recipient.
Contraventions entitle Bürkert to full compensation. Drawings or documents provided
together with offers must be returned by the receiver when no order is placed.
§ 13 Limitation of Liability
The seller´s liability is exclusively determined by the provisions stipulated in the abovementioned
clauses. As far as legally permissible, any other claims by the purchaser including
liability claims and regardless of legal basis, especially those concerning non-contractual
liability as well as liability for consequential damages, are excluded. In addition, this is limited
by the value of the received goods. Bürkert provides no guaranties and is not legally
responsible for test runs with provided prototypes or sample devices.
§ 14 Software Usage
If software is contained in the scope of supply, the orderer shall be granted a non-exclusive
right to use the supplied software, including its documentation. It is provided for use together
with the delivered item. Use of the software on more than one system is not permitted.
The orderer may only copy, revise, translate or convert the software from object code to
source code to the extent permitted by law (§§ 69 a ff. UrhG (German Copyright Act)). The
orderer agrees not to remove the manufacturer´s data, in particular the copyright notice, nor
to change any of this data without our express consent.
Any other rights associated with the software and documentation including copies thereof
remain vested with us or the software manufacturer. Granting sublicenses is prohibited.
§15 Applicable Law, Place of Jurisdiction, Partial Nullity
These Standard Terms and Conditions and all legal relationships between seller and
purchaser are governed by the laws of the Federal Republic of Germany, excluding UN
Purchase Law. As far as legally permitted, Künzelsau, Germany is the exclusive court of
jurisdiction for all direct or indirect disputes arising from the contractual relationship. Place of
delivery for supply and payment is Ingelfingen, Germany. Should a provision of these terms
and conditions or a condition in the context of other agreements be or become invalid, this
shall not impair the validity of all the remaining provisions or agreements.
Updated: April 2015