Terms and Conditions – All Orders, including eCommerce Orders
Burkert USA Corporation (hereinafter called ‘Seller’) agrees to sell all of its right, title and interest in to the merchandise described on the Sales Order Confirmation Agreement on the following terms and conditions of purchase by Buyer. Any waiver or amendment of these terms and conditions shall not be binding on Seller unless made in a writing expressly stating that it is such a waiver or amendment and signed by an authorized representative of Seller.
This contract, along with the Sales Order Confirmation Agreement once accepted by Seller, shall constitute the entire agreement between Seller and Buyer with respect to the merchandise to be furnished hereunder. Buyer acknowledges that no representation, promise or condition except as set forth herein has been relied upon in making its determination to purchase.
Orders and Acceptance:
All orders are subject to approval at Seller’s home office. Acceptance of any and all purchaser orders from Buyer is conditioned upon Buyer’s consent to the Terms and Conditions set forth herein, which are in lieu of and replace any and all terms and conditions set forth on any purchase order, specifications or other documents issued by Buyer. Any additional, different or conflicting terms or conditions on any such document issued by Buyer are hereby rejected by Seller, and any such document shall be wholly inapplicable to any sale from Seller and shall not be binding in any way on Seller.
Prices and Discounts:
All prices and discounts are in accordance with the established price and discount schedules of Seller, and are subject to change without notice. The price charged for the merchandise will be fixed as of the date the order for it is placed with Seller. All prices are F.C.A. Charlotte, North Carolina or Irvine, California, as the case may be.
Buyer shall be charged for and responsible to pay all shipping and handling charges. Unless otherwise stated, all payments are due and payable thirty (30) days from date of invoice. All payments shall be made to Seller in United States funds. Any amount due but unpaid thirty (30) days after the invoice date shall be subject to an interest charge of 1½ % per month. If all the merchandise is not delivered at one time, Buyer shall pay the unit price applicable to the merchandise delivered. The prices quoted by Seller do not include sales, use, excise or other similar taxes. Buyer shall pay, in addition to the prices quoted, the amount of any present or future sales, use, excise, duty or other similar charge, fee or tax applicable to the sale of merchandise by Seller unless, in lieu thereof, Buyer furnishes Seller at the time an order is submitted appropriate exemption certificates or other documents acceptable to taxing or custom authorities. No responsibility or liability will be undertaken by Seller for import duties, laws, regulations, fees or taxes imposed by any foreign country.
Buyer shall remain primarily liable for the purchase price, and Seller shall not be obligated to accept any item or condition of payment which will shift said liability to a third person or entity not a party to this contract of sale whether or not such third person is the United Sales Government, its agents or instrumentalities. No cost analysis of the cost of manufacturing or producing the merchandise covered by this contract of sale will be supplied and no examination or audit of Seller’s books and records will be permitted for any reason whatsoever.
Credit conditions and approval:
Acceptance of any order, as well as the shipment and delivery of any materials, shall be subject to the credit approval of Seller. Seller may, in its sole discretion and at any time, decline to make any shipments or deliveries except upon receipt of full payment or upon terms and conditions or security arrangements satisfactory to Seller. In the event of the bankruptcy or insolvency of Buyer, or if any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, or if any appointment or assignment for the benefit of creditors is made with regard to Buyer, Seller may terminate its performance and have the same rights and remedies as it would in the event of a breach by Buyer, including, but not limited to, recovery of reasonable cancellation and restocking charges. Unless otherwise agreed to in writing, all export sales are to be prepaid by wire transfer before shipment.
Delivery and risk of loss:
Shipping dates are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time after the stated delivery date. Seller shall not be liable for any late delivery caused by the failure of Buyer to provide any necessary information in a timely manner. Title and all risk of loss or damage to the merchandise shall pass to Buyer upon delivery to the carrier. Seller’s liability for delivery shall cease upon Seller making delivery to the carrier at the F.O.B. point.
Seller shall not be liable to deliver or for delay in the delivery of any merchandise due to any cause beyond its control, including, but not limited to, an act of God, civil unrest, military action, insurrection, terrorism, fire, bombing, accident, epidemic, flood, drought, riot, war restraint on transportation or shipping, sabotage, labor dispute, governmental action, or inability to obtain materials, labor, components, manufacturing facilities, or transportation or shipping by affecting Seller, its suppliers or sub-contractors. In the event of any such delay, Seller shall have the right to cancel this contract of sale or extend the date of delivery or performance hereunder by a period equal to the time lost by reason of such delay. In the event Seller’s production is curtailed for any of the above reasons, Seller may allocate its production among its various customers in a commercially fair and reasonable manner. In the event of delayed or extended shipping dates due to any of the above causes, and Buyer changes shipping instructions, any additional shipping charges shall be paid by Buyer as a part of the purchase price.
Weights, Dimensions, and Designs:
Shipping weights and dimensions given in Seller, in its catalog or otherwise, are as close to actual as practicable but are not guaranteed. No claims will be allowed because of any discrepancy between actual weight or dimensions shipped and listed data. All designs and specifications are subject to change without notice.
Shipping and Packaging:
All merchandise is carefully packed for shipment, and Seller will not be responsible for loss, delay or breakage after having received ‘in good order’ receipts from the carrier. All claims for breakage, loss, delay and damage should be made to carriers, but Seller will assist Buyer in securing satisfactory adjustments for such as claims. In the absence of directions, merchandise will be shipped by the method and via carrier Seller believes dependable in its sole discretion. Merchandise held by Seller beyond original invoice date for the convenience of Buyer will be priced as of either the date of completion or the date of the original order, whichever date produces the higher price, and the terms of payments will apply as from the original order date. Such goods will be subject to reasonable charges for warehousing and other associated expenses incident to such delay in shipping.
An order is not subject to cancellation by Buyer or changes in specifications, shipping schedules or other changes without Seller’s prior written consent and then only upon agreement to compensate Seller for loss caused by such cancellation or changes.
Compliance with Laws and Safety Regulations:
It is Buyer’s sole responsibility to assure the safe use, maintenance, and operation of the any and all products or merchandise provided by Seller, including any and all options, safety equipment, and additions. Furthermore, Buyer shall solely be responsible for compliance with any and all requirements or recommendations of any supplier or sub-vendor of Seller, OSHA, and any other local, state, federal, or international safety or other treaties, statutes, laws or regulations as they may pertain to the sale, transport, alteration and/or operation or use of the merchandise.
Sellers Warranty and Limitation of Liability:
Seller warrants that the merchandise sold to Buyer shall be free from defects in material and workmanship under normal use and service for a period of one (1) year from date of installation or eighteen (18) months from the date of shipment from Sellers facility, whichever occurs first. If, during such period (i) Seller is notified promptly in writing upon discovery of any defect in the merchandise sold hereunder, including a detailed description of such defect, and (ii) such merchandise is returned to Seller, F.O.B. Seller’s facility, and (iii) Seller’s examination of such returned merchandise proves to Seller’s satisfaction that such merchandise is defective and such defects were not caused by accident, abuse, misuse, neglect, improper installation or any repair, modification, adaptation or other physical change performed by someone other than Seller, improper testing, or use contrary to any instructions issued by Seller, then, within a reasonable time, Seller shall (at its sole option) either repair, replace, or credit Buyer for such merchandise.
Seller shall return any merchandise repaired under this warranty to Buyer transportation prepaid. The performance of this warranty does not extend the warranty period for any merchandise beyond that period applicable to the merchandise originally delivered. The foregoing warranty constitutes Seller’s exclusive liability, and the exclusive remedy of Buyer and all others claiming under, with or through Buyer for any breach of any warranty or other nonconformity of the goods covered by this acknowledgement. This warranty is exclusive, and in lieu of all other warranties, express, implied, arising by trade usage, or statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, which are hereby expressly disclaimed to the fullest extent allowed by law. In no event will Seller be liable for special, indirect or consequential damages or loss of use or profits resulting from Seller’s performance or failure to perform, or the furnishing, performance, or use of any merchandise sold by Seller to Buyer, whether due to breach of contract, breach of warranty, statute, tort of Seller or otherwise. The total liability of Seller under or in connection with this Agreement shall, in no event, exceed the total payments made by Buyer to Seller under this Agreement. This limitation of liability also extends to any injuries and/or damages of whatever nature resulting in any way from Buyer’s use of any engineering recommendations, or technical assistance, advice or data supplied by Seller to Buyer in connection with the merchandise supplied by Seller.
Non-Warranty Returns for Repair:
Should Buyer desire to return merchandise for repair due to causes not covered by Seller’s warranty, Buyer shall first notify Seller in writing and, after receipt of shipping advice, Buyer may return it to Seller’s place of business carrying charges prepaid. Seller’s Service Department will repair such merchandise at a commercially-reasonable cost. When necessary to request a non-warranty return, give all possible information regarding the trouble experienced and complete details of installation of the merchandise and the use to which it was put.
Returns for Credit:
No returns for credit will be accepted unless Seller’s permission has been obtained in each case in advance and then only to the original purchaser. Only sizes and designs that are in Seller’s current product line that are in active demand can be accepted for credit. Credit will be based on prices prevailing at the time of return, or the invoiced price, whichever is lower, subject to deduction for expenses incurred in restoring goods to sellable condition. Obsolete or specially manufactured merchandise can be accepted only to the extent of value to Seller in each case, and in Seller’s unfettered discretion.
Notice of Claims by Buyer:
Seller shall have no liability on any claim by Buyer with respect to any merchandise furnished hereunder alleged to be not in conformity with the terms and conditions hereof or with any warranty in these terms and conditions unless written notice specifying such claim shall have been the earliest date on which the basis for such claim could have been discovered by Buyer with reasonable diligence but in no event more than one (1) year from date of installation or eighteen (18) months from the date of shipment from Sellers facility, whichever occurs first. Except as stated in the preceding sentence, Seller shall not be liable to Buyer for any claim under this contract of which it does not receive such timely written notice. Failure to so notify Seller shall constitute a waiver of all claims hereunder.
Limitations upon Remedies of Buyer and Others:
As to any claim of whatever nature or kind asserted against Seller that is related to this transaction or to the merchandise which is the subject hereof, the remedies of Buyer and all other claiming under, with or through Buyer are expressly limited to the following:
(A) Seller will, at its sole option, either (1) repair or replace such merchandise at the delivery point specified herein, or (2) repay the contract price herein of such merchandise upon its return by Buyer to said delivery point, plus any transportation charges paid by Buyer in addition to such price, or (3) credit Buyer with an amount determined in accordance with Section 2-714(2) of the Uniform Commercial Code.
(B) Notwithstanding any other provision or term of this contract or any existing or future document or instrument being deemed part of this contract, the limit of Seller’s liability with respect to this transaction or with respect to the merchandise which is the subject hereof, whether in contract, in tort, under any warranty or statute, or otherwise shall, except as expressly provided otherwise in paragraph (A), be the contract price herein of the specific product supplied by Seller to which this contract
Relates.Without limiting the foregoing, Seller shall not be liable for any special, or consequential damages in any claim, action, suit or proceeding related to this transaction; nor shall there be any liability thereunder to Seller for claims for labor, loss of profits or goodwill, repairs, delay damages, direct or indirect penalties, or expenses incidental to replacement.
(C) Seller shall not be liable for and Buyer assumes responsibility for all personal injuries and property damages resulting from the handling, possession, installation or use of the merchandise covered by this Agreement; and
(D) The foregoing is intended as a complete allocation of the risks and fault between the parties. Because the bargain struck and the price paid reflect such allocation, this limitation upon remedies will not have failed of its essential purpose.
Ownership and other Rights:
Buyer has no title to or interest in the merchandise covered by this Agreement except as expressly provided herein. Seller has and shall retain sole and exclusive title to or interest in the merchandise until completely paid for by Buyer. In no event shall Buyer acquire any trade secrets, copyrights, patents or rights to patent, trademark or any other such intellectual property or proprietary rights embodied in the merchandise.
Buyer shall indemnify Seller from and against any claims, including third party claims, loss, costs, damages or expenses, fines, amounts paid in settlement, and reasonable legal fees and expenses (collectively “Claims”), arising out of or related to any of the following: (i) Buyer’s breach of this Agreement; (ii) the negligence, gross negligence, bad faith, intentional or willful misconduct of Buyer; or (iii) bodily injury, death or damage to personal property arising out of or relating to Buyer’s use or operation of the merchandise.
Governing Law, Limitations, Arbitration and Forum Selection: This Agreement, including the parties' rights, obligations and performance under it or with regard to the merchandise, are governed by the laws of the State of North Carolina, excluding its choice of laws' provisions and excluding the Convention for the International Sale of Goods. Any controversy, claim or dispute arising out of or relating to this Agreement or the merchandise shall be submitted to binding arbitration in Mecklenburg County, North Carolina in accordance with the rules and laws of the State of North Carolina, including the Revised Uniform Arbitration Act, within two (2) years of the earlier of the date of shipment. The Parties shall each pay one-half of the costs and expenses of such arbitration and each shall separately pay its counsel fees and expenses unless otherwise ordered by the arbitrator(s). In the event that a dispute arises which requires arbitration or results in legal action, the prevailing party may recover its reasonable attorney's fees pursuant to N.C. Gen. Stat. § 6-21.6. Judgment upon any award rendered by the arbitrator(s) may be entered in any North Carolina State Court having jurisdiction thereof. Further, Buyer hereby irrevocably consents to and confers personal jurisdiction upon the courts of the State of North Carolina, and waives any objections to the sole and exclusive jurisdiction or venue of such courts.
Buyer may not assign its rights or obligations under this Agreement or any other purchase order with Seller without the prior written consent of Seller, any purported assignment without such consent shall be of no effect.
Survival of Obligations:
The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement. Similarly, any portion of this Agreement that is found to be unenforceable will not invalidate the remainder of this Agreement.
Acceptance, Waiver and Acknowledgment:
By taking delivery of the merchandise covered by this Agreement, Buyer accepts and agrees to be bound by all the terms and conditions stated herein. Any waiver by Seller of any default by Buyer, of any of the terms and conditions of this Agreement, or any other purchase order with Seller shall not be deemed to be a continuing waiver. It is acknowledged by Buyer that Seller shall in no way be deemed or held to be obligated, liable, or accountable upon or under any claims, guarantees, warranties, express or implied, statutory, by operation of law or otherwise in any manner or form whatsoever beyond its express agreements herein.