Section 1 Applicability
1. These General Terms and Conditions apply exclusively; any purchaser’s opposing conditions or terms differing from our Terms and Conditions shall be rejected if not explicitly approved in writing. Our terms of sale, delivery and payment also apply in case we perform a delivery without reservation to the purchaser while being aware of opposing or differing terms of the purchaser.
2. Our terms of sale, delivery and payment also apply for any future business transactions with the purchaser.
3. Our sales, delivery and payment terms are exclusively intended for commercial customers.
Section 2 Quotations
1. Our specifications relating to prices, quantities, delivery dates and possible deliveries are non-binding. We shall be bound to our quoted prices for a period of 60 days from the date of quotation if not otherwise agreed in writing. We reserve the right to implement changes in dimensions and colours, as well as technical modifications. Minor differences in weight and dimensions are due to the production process.
2. We reserve the right of ownership and intellectual property rights to any graphical representation and images, concepts, calculations and other materials. The indicated materials may not be made available to a third party without our explicit written consent. The use of image data requires a separate agreement.
Section 3 Terms of pricing and payment
1. If not otherwise agreed in writing, the billing shall be made in euros. The prices are quoted within Germany with a free delivery from € 200. Different terms for deliveries from 100 kg or for islands to be requested.
Our prices are quoted for a purchase of original packaging units. When a smaller quantity is ordered, we are entitled to bill a surcharge at 25% of the purchase price.
2. All the prices we indicate are net prices; they are to be understood excluding VAT in the applicable amount as at the invoice date.
Our invoices are due in 30 days from the invoice date net with no discount. We provide a discount of 2% for payments within 20 days and 3% for payments within 10 days. The entitlement to any discount becomes void in case older invoices are overdue. These provisions do not apply to invoices for repairs and installation, as well as to any billing for equipment, which are always due immediately and with no discount.
In case any payment or its part is overdue, the purchaser is considered in delay even without any dunning or reminder notice. We are entitled to charge interests on late payments in the amount of the current bank rates for overdraft credits.
3. The purchaser is entitled to perform an offset only if its counter claims have been legally recognized and they are uncontested or if they have been recognized by us. Furthermore, the purchaser is entitled to exercise a right of retention only insofar as its counter claim is based on the same contractual relationship as the payment claim.
Section 4 Delivery and delivery time
1. The beginning of the delivery time as agreed is conditional upon the clarification of all technical aspects. Any goods purchased based on a release order shall be released within 12 months, provided no different explicit arrangement is agreed. When such a period expires, we are entitled to deliver the goods disregarding any restriction, without having to wait for a release order.
The adherence to the agreed delivery time or to the rightfully determined delivery scheduling is conditional upon us being delivered any primary materials or purchased parts from our subcontractors in due time as ordered and as necessary for the accomplishment of the purchaser’s order (with the reservation of a self-delivery). In case we are not able to adhere to the delivery times as agreed or as rightfully determined as a result of a late delivery by our subcontractor, we shall not be considered in delay, provided the primary materials had been ordered in due time and we have undertaken reasonable efforts to ensure a delivery of primary materials in as due.
2. Both compensation claims by the purchaser based on a delayed delivery and any indemnity claims as a replacement of delivery exceeding the limits as set out in par. 1 are excluded in all cases of a delayed delivery, also after the expiry of any period for delivery imposed on us. This does not apply to the extent of legally imposed responsibility in case of intent or gross negligence or of injury to life, body or health; this constitutes no alteration of the burden of proof to the detriment of the purchaser.
The purchaser is entitled to rescind the contract within the framework of applicable legal provisions, insofar as the delay in delivery is imputable to us.
3. If the purchaser is in delay with acceptance or if the purchaser infringes on any other duty to cooperate, we are entitled to claim the damage incurred, including any additional expenditures. In such case, also the risk of accidental deterioration or of accidental degradation of the goods is transferred to the purchaser at the moment the purchaser is in delay with acceptance.
4. If no other arrangement is made, we are entitled to partial deliveries. The purchaser is not entitled to refuse partial deliveries, unless they are impracticable for the purchaser because of the nature of the purchaser’s contractual obligations or because of the properties of the goods or their intended use.
Section 5 Risk transfer
The shipment is always made at the purchaser’s account and risk. This also applies when the goods is shipped to another address as required by the purchaser. For the purpose of shipment, we always choose the way appearing to be most advantageous.
Immediately after the delivery, the purchaser shall check the goods with regard to their completeness and any identifiable damage and notify us about any loss or damage found within 5 days from the receipt of the shipment.
Section 6 Terms of warranty
1. Any warranty rights of the purchaser are conditional upon the purchaser’s compliance with its obligations regarding inspection and notification according to §§ 377, 378 of the German Commercial Code (HGB). §§ 377, 378 HGB also apply mutatis mutandis when we only provide a pure service to the purchaser.
2. Insofar as the purchased item is defective, we are always first entitled to be granted the opportunity to provide supplementary performance according to § 439 of the German Civil Code (BGB).
3. Unless otherwise specified below, any other claim by the purchaser – irrespective of its legal basis – is excluded. We shall therefore not be held liable for damage not occurring to the delivered item itself; in particular we shall not be held liable for any lost profit or any other financial loss of the purchaser.
The aforementioned exclusion of liability shall not apply insofar as the cause of damage is based on intent or gross negligence, as well as in case of injury to life, body or health. It shall also not apply insofar as we have assumed a guarantee for the properties of the particular item or for its durability. The aforementioned exclusion of liability shall also not apply to such damage, which was caused by culpable violation of material contractual obligations (these are obligations, the fulfilment of which is a prerequisite for enabling proper performance of the contract, and the observance of which can be, as a rule, replied upon by our contractual partner); in such case, provided no intent or gross negligence exist and we have assumed no guarantee, our liability shall be limited to foreseeable damage typical for the particular type of contract.
4. If the delivered goods is defective or lacking any properties as promised, or if it becomes defective during the warranty period, we reserve the right of supplementary performance. At our discretion and with the exclusion of any additional warranty rights, we will provide either for remedy of the defect or for a replacement delivery.
In the event that and only if such supplementary performance is unsuccessful, we will take the product back. Upon identification of such defects, specifically within 10 days from acceptance in case of identifiable defects and without delay after identifiability in case of non-identifiable defects, we shall be promptly notified on them in writing. However, the warranty period expires, at the latest, 24 months from the day the goods have been dispatched from our plant.
The warranty becomes void in case of improper usage of goods, in case of other than designated use of goods or when the goods are modified by the purchaser or by a third party.
The contractual item is exclusively the goods sold with the properties and characteristics, as well as the designated purpose, in compliance with the attached product description. Other or additional properties and/or characteristics or an additional designated purpose shall be deemed agreed only if explicitly confirmed by us in writing.
Return of goods can only be carried out after a written agreement. It is necessary to attach the goods return accompanying certificate on the outside (to be provided by BURG-WÄCHTER).
Any returned goods without the accompanying certificate cannot be processed. The return delivery address is: BURG-WÄCHTER KG, Wormgermühle, D-58540 Meinerzhagen.
A minimum deduction of 25% is charged for any return not caused by BURG-WÄCHTER. Custom-made items (mailbox systems, locking systems, etc.) cannot be returned.
Section 7 Total liability
1. Any further liability for compensation and reimbursement of expenses than that specified in § 6 – irrespective of the legal nature of the claim presented – is excluded. This provision does not apply to claims, which are made against us according to §§ 1 and 4 of the German Product Liability Act (Gesetz über die Haftung für fehlerhafte Produkte). The exclusion of liability shall also not apply in case of intent, gross negligence, injury to life, body or health, as well as in case of breach of material contractual obligations (so called “cardinal duties”).
However, the claim for compensation in case of breach of material contractual obligations shall be limited to foreseeable damage typical for the particular type of contract, provided no intent or gross negligence exist or liability for injury to life, body or health is imposed. The aforementioned provisions do not constitute an alteration of the burden of proof to the detriment of the purchaser.
2. Insofar as our liability is excluded or limited, the same exclusions and limitations apply to personal liability of our employees, personnel, staff, representatives and agents.
Section 8 Retention of title
1. We retain the ownership of the purchased item until the purchase price has been fully paid including any additional costs incurred (transportation, packaging etc.). In the event of an action in breach of contract by the purchaser, in particular in case of delayed payment, we are entitled to rescind the purchase contract and recover the purchased item. After the recovery of the purchased item, we are entitled to sell it; the proceeds from such sale after a deduction of reasonable selling costs shall be credited to the purchaser’s liability.
2. The purchaser shall treat the purchased item with care. At its own expense, the purchaser shall insure the purchased item sufficiently at the original value against damage caused by fire, water and theft.
3. In the event of seizure or other similar action by a third party, the purchaser shall notify us immediately in writing. In such an event, the purchaser is further obliged to support us fully in judicial or extrajudicial assertion of our rights, in particular to provide us with any required supporting documents.
4. The purchaser is entitled to resell the purchased item in a regular course of business; however, the purchaser assigns to us already now all receivables up to the total of the final invoice amount (incl. VAT) arising from such resale to its customers or third parties. This assignment applies irrespective of whether the purchased item is resold without or after being further processed. We hereby accept this assignment.
The purchaser remains entitled to collect the debt within the framework of a regular course of business. This entitlement becomes void if the purchaser no longer meets its payment obligations associated with the collected proceeds, or in case of the purchaser’s delayed payment. It also becomes void in the event of an application to open insolvency or composition proceedings on the assets of the purchaser or in case the purchaser discontinues its payments.
In such events we are entitled to collect the assigned debt ourselves. The purchaser shall provide us with any information required in order to collect the debt and with the associated documents. In such case, the purchaser shall notify the debtor (the third party) about the assignment of debt.
5. The processing or transformation of the purchased item by the purchaser shall always be accomplished for us. If the purchased item is processed together with other items not belonging to us, we shall be granted co-ownership of the new item proportionally to the value of the purchased item compared to the value of the other items processed as at the time of processing. As for the rest, the same provisions applying to the purchased item delivered by us shall equally apply to the newly created item.
6. If the purchased item is inseparably mixed with other items not belonging to us, we shall be granted co-ownership of the new item proportionally to the value of the purchased item compared to the value of the other mixed items as at the time of processing. If the mixing is carried out in such a way that the purchaser’s item can be regarded as the main item, it is agreed that the purchaser shall assign co-ownership to us in the proportional amount. The purchaser shall hold the ownership or co-ownership resulting from this for us.
7. We undertake to release the collateral due to us at the request of the purchaser insofar as the marketable value of our collateral exceeds the claim to be secured by more than 20%; the selection of the collateral to be released is our responsibility.
Section 9 Dispute resolution
Burg-Wächter KG is not obliged to participate in dispute settlement proceedings before a consumer arbitration body. Voluntary participation will not take place.
Section 10 Place of execution, applicable law and jurisdiction
1. Unless otherwise contractually agreed, the place of execution is the registered office of our company.
2. Any business relationship with us is governed exclusively by the law of the Federal Republic of Germany. Application of the CISG (UN Convention on Contracts for the International Sale of Goods) is excluded.
3. If the purchaser is a merchant, any legal disputes internationally shall be subject to the courts of the Federal Republic of Germany.
In any case, the place of jurisdiction is the registered office of our company. However, we are entitled to sue the purchaser at its general place of jurisdiction. These regulations of jurisdiction also apply to claims arising out of any bill of exchange or cheque.
USt-IdNr. DE 126881184
ILN 40 03482 00000 7