General Terms and Conditions for Business Customers
Disclaimer: The following is a non-binding translation of our "Allgemeine Geschäftsbedingungen" furnished to customers for information purposes only. The original German wording shall be binding exclusively in all respects. None of the following shall be relied upon in any dispute.
1. Exclusivity clause
All agreements and offers are subject to our General Terms and Conditions of Business; these are understood to form part of the contract upon order placement, tacit acceptance of our official order confirmation or acceptance of the delivery. Any varying, contrary or additional general terms and conditions, even if we are aware of them, do not form part of the contract unless their implementation has been expressly agreed to in writing.
2. Our duty of performance
We would always prefer to supply you with state-of-the-art products. This means that technical alterations may be unavoidable. We reserve the right to make technical alterations as well as changes in shape, color and weight within reasonable limits.
We are entitled to fulfill our obligations in the form of part-deliveries, to the extent that this is reasonable.
If our performance is delayed as a result of unforeseeable obstacles, such as acts of God, strikes, disruption of traffic or lack of raw materials or if, for reasons which are beyond our control, our suppliers fail to make delivery, then our performance deadlines are also extended accordingly. In such a case we will immediately provide information about the existence of such obstacles and their foreseeable duration. If this is not just a temporary obstacle to our performance we are entitled to withdraw from the contract. We will then immediately return any payments that the customer may already have made.
3. Prices and packaging costs
The prices shown are in Euro and apply "ex works"; VAT is not included. For orders from EU countries please mention your individual EU tax identification number. The prices are valid from 01.02.2009.
Should raw material and energy costs with respect to the goods to be delivered by us increase by more than 20 % between the time the contract was signed and the agreed delivery date then we are entitled to demand additional payment to compensate for the rate of increase.
Avoid the costs of small orders. Our primary interest is to supply you as quickly as possible with top-quality goods at favorable prices. This principle also applies to small orders. In any company order processing involves costs, no matter how high the order value. Our processing costs are covered by order values over EUR 50 (domestic) and EUR 250 (other countries). For orders below these values a processing surcharge of EUR 10 (domestic) and EUR 20 (other countries) will be added – we apologize for any inconvenience that this may cause. You can also lower your administration costs by combining several small orders to form one large order.
Deliveries weighing up to 31 kg will be sent by parcel post except for bulky items. Deliveries with a weight exceeding 31 kg and bulky items will be handled by our forwarding agents. This ensures that you will receive your order as quickly as possible and at a favorable price. Charges for transport and packaging will be charged on the invoice at the actual cost incurred by us.
We currently charge EUR 8,40 for a parcel weighing up to 31 kg within Germany.
4. Payment, delays, offsets and right of retention
You can expect us to deliver punctually – for punctual payment within 10 days of the invoice date we grant a 2 % cash discount; from the 11th to the 30th day payment is net. For first orders we reserve the right to make a creditworthiness check and, if necessary, to deliver against advance payment or cash on delivery. Our obligation to deliver is suspended should the customer have defaulted on a due payment.
Should several outstanding accounts (including principal and subsidiary claims) not have been paid, then it is agreed that the redemption sequence of any payments received will be treated in accordance with the sequence given in §§366 Abs. 2, 367 Abs. 1 of the German Civil Code (BGB).
Offsetting against counterclaims is only permitted when these are uncontested or have been legally determined. You can only exercise a right of retention when the counterclaim on which the right of retention is based is uncontested or has been legally determined.
5. Return deliveries
If we have been previously informed and the shipment is returned to our premises free of charge, undamaged and in the original packaging within 14 days then we will grant you either a replacement product or issue a credit note. However, we retain the right to invoice an appropriate amount of the processing charges involved.
6. Place of jurisdiction, Transfer of risks
We will meet all our obligations at our headquarters in Bad Bellingen (place of jurisdiction). The risk of accidental loss and deterioration of the goods is transferred to the purchaser when the goods are delivered to the forwarding agent, freight carrier or any other persons charged with dispatching the goods.
7. Liability for defects
A notice of defects must be given in writing. Should a defect exist in the purchased goods then, after due consideration, it is our decision whether to satisfy the purchaser by remedying the defect or by supplying a defect-free replacement.
8. Claims for damages
We accept liability for damages resulting from an intentional or grossly negligent violation of duties by one of our legal representatives or vicarious agents. Any such liability resulting from the grossly negligent violation of duties by a vicarious agent who is not a managerial employee is limited to compensation for speculative damages.
We further accept liability for death, bodily injuries or health damage resulting from the intentional or grossly negligent violation of duties by one of our legal representatives or vicarious agents.
Liability for damages resulting from simple or ordinary neglect of our duties or a simple or ordinary negligent act by one of our legal representatives or vicarious agents is excluded, unless important duties have been infringed whose observance is essential to achieving the purpose of the contract or which have arisen from the justified utilization of particular trust. In these exceptional circumstances our liability is limited to compensation for speculative damages.
Our liability under the product liability laws and from the acceptance of a warranty for the quality of an object or a supply risk as well as liability for malicious silence with regard to a defect remains unaffected.
We accept no liability for damage claims made against our customers by third parties under foreign laws and whose assertion is evidently incompatible with the principles of German Law (ordre public). This applies in particular to the assertion of claims for "punitive damages".
9. Statutory limitations
Any claims for defects arising from the contract are struck by the statute of limitations one year after delivery of the goods, unless the claim is based on an intentional or grossly negligent violation of duties, the acceptance of a warranty for the quality of an object, on malicious silence with regard to a defect, or death, bodily injuries or health damage.
10. Reservation of title
Goods supplied by us (hereafter: conditional goods) remain our property until all claims existing from our whole business relationship when the contract was made (including claims resulting from this contract) have been paid in full.
The conditional goods must be treated with care and the customer must carry out any service or maintenance work that may be necessary on his/her own account. The conditional goods must also be adequately insured. We must be informed of any change in ownership immediately. The customer must inform us immediately in writing of any orders of attachment or other actions affecting the conditional goods. Any costs arising from legal proceedings according to § 771 BGB are to the customer’s account.
Processing and transformation of the conditional goods by the customer is always carried out in our name and on our behalf. The rights of the customer affecting the conditional goods are transferred to the new goods. If transformation is carried out using objects that are not our property then we acquire the co-ownership of the new goods in the ratio of the value of the goods supplied by us to that of the other processed objects.
The customer may sell the conditional goods in an appropriate business transaction provided that he/she is not in default of payment. The same applies for the sale of goods to which we have acquired rights of ownership according to legal regulations (links, etc.) or in accordance with this contract. Claims arising from the further sales of the conditional goods are assigned to us (to the amount shown on the invoice). If the claims arising from the further sales are placed in a current account then the assignment refers to the closing balance. We accept the assignment.
If the conditional goods are sold on by the customer together with other goods not supplied by us then the claims from the further sales are assigned to us in the in the ratio of the invoice value of the goods supplied by us to the invoice value of the other goods. If the claims arising from the further sales are placed in a current account then the assignment refers to the closing balance. We accept the assignment.
After the assignment the customer remains authorized to collect the claim. However, we retain the right to collect the claim ourselves, as soon as the customer no longer fulfills his/her obligation to make due and proper payment and defaults on payment.
If the customer is entitled to payment for the use of the conditional goods by third parties (e.g. a contractual claim) then the customer assigns this claim to us to the amount of the secured debt according to Abs. 1. We accept the assignment.
Should the customer behave in violation of the contract, particularly by defaulting on payment, we are entitled to withdraw from the contract and demand the return of the conditional goods (§ 449 Abs. 2 BGB).
11. Authority of the German version of these General Terms and Conditions, applicable law and place of jurisdiction
The German text of these General Terms and Conditions is authoritative for all legal actions. The laws of the Republic of Germany are the solely applicable laws. The place of jurisdiction for all contractual disputes arising from or in connection with this contract is agreed to be the German Court of Law responsible for the headquarters of Bürkle GmbH (Local Court [AG] Freiburg, District Court [LG] Freiburg, etc.).
12. Data storage and processing, data transmission
In order to satisfy current demands placed upon a commercial organization, the personal and company-related data of our customers are stored in a computer and processed. Data usage and processing is in strict accordance with data protection laws. The customer is responsible for checking all transmitted or dispatched data.
