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 the goods 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 of Sale (these “Terms and Conditions”) shall not be binding on Seller unless made in a writing expressly stating that it is a waiver or amendment and signed by an authorized representative of Seller.
This contract, together with the Sales Order Confirmation Agreement once accepted by Seller, constitutes the entire agreement between Seller and Buyer with respect to the goods (“Goods”) to be furnished hereunder (the “Agreement”). Buyer acknowledges that no representation, promise, or condition except as set forth herein has been relied upon in making its determination to purchase.
1. Orders and Acceptance
All orders are subject to approval at Seller’s home office. Buyer’s issuance of a purchase order, taking delivery of any merchandise, or making any payment constitutes Buyer’s unconditional acceptance of these Terms and Conditions. Acceptance of any purchase order is expressly conditioned upon Buyer’s assent to these Terms and Conditions, which supersede and replace any and all terms and conditions contained in any purchase order, specifications, or other documents issued by Buyer.
Performance by Seller shall not constitute acceptance of any additional, different, or conflicting terms proposed by Buyer. Any such terms, whether contained in Buyer’s purchase order, confirmation, portal terms, click through terms, EDI transmissions, or other communications, are hereby objected to and rejected, shall be of no force or effect, and shall not be binding on Seller unless expressly agreed to in a separate written amendment signed by an authorized representative of Seller. No trade usage, prior course of dealing, or course of performance shall modify these Terms and Conditions.
2. Prices, Taxes, and Payment
All prices and discounts are in accordance with Seller’s established price and discount schedules and are subject to change without notice. The price charged for the Goods shall be the price in effect on the date the order is placed with Seller, subject to the terms of Section 7 (Shipping and Packaging) below. All prices are F.C.A. Seller’s facility, Huntersville, North Carolina.
Buyer shall be charged for and responsible for all shipping and handling charges. Unless otherwise stated on the invoice, all payments are due and payable within thirty (30) days from the date of invoice. All payments shall be made to Seller in United States funds. Any amount not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. If Goods are delivered in installments, Buyer shall pay the applicable unit price for each installment as delivered. In the event any amount becomes past due, Seller may suspend additional shipments and accelerate all amounts owing. Buyer shall not withhold, set off, or recoup any amounts due to Seller for any reason.
Prices do not include sales taxes, use taxes, excise taxes, customs duties, or other similar taxes, fees, or governmental charges. Buyer shall pay all such charges unless Buyer furnishes to Seller appropriate exemption certificates or other documentation acceptable to the relevant taxing or customs authorities at the time the order is submitted. Seller assumes no responsibility or liability for import duties, laws, regulations, fees, or taxes imposed by any foreign country.
Buyer shall remain liable for the purchase price, and Seller shall not be obligated to accept any item or condition of payment that would shift such liability to a third person or entity not a party to this contract of sale, whether or not such third person is the United States Government or any of its agents or instrumentalities. No cost analysis of the cost of manufacturing or producing the Goods 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.
3. Credit Conditions and Approval
Acceptance of any purchase order by Seller, as well as the shipment and delivery of any materials, is subject to Seller’s credit approval of Buyer. 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 such terms, conditions, or security arrangements as are satisfactory to Seller. In the event of the bankruptcy or insolvency of Buyer, if any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, or if any appointment or assignment for the benefit of creditors is made with respect 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 without limitation, recovery of reasonable cancellation and restocking charges. Unless otherwise agreed to in writing, all export sales are to be prepaid before shipment.
4. Delivery and Risk of Loss
Goods will be delivered F.C.A. Seller’s facility, Huntersville, North Carolina, except that exports will be delivered EXW Seller’s facility, Huntersville, North Carolina (Incoterms 2020). Shipping and delivery dates are approximate only. Seller shall not be liable for, nor shall Seller be deemed in breach of its obligations to Buyer, because of any delivery made within a reasonable time after the stated date. Seller shall not be liable for any delay caused by Buyer’s failure to provide necessary information in a timely manner. Title to and all risk of loss or damage to the Goods 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.C.A. point. If Buyer fails to take delivery when due, Seller may store Goods at Buyer’s cost and risk, and tender for delivery shall be deemed delivery.
5. Force Majeure
Seller shall not be liable to deliver or for delay in the delivery of any Goods due to any cause beyond its control, including, without limitation, 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 affecting Seller, its suppliers, or subcontractors. 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 foregoing reasons, Seller may allocate its production among its customers in a commercially fair and reasonable manner. If shipping dates are delayed or extended due to any such cause and Buyer changes shipping instructions, any additional shipping charges shall be paid by Buyer as part of the purchase price.
6. Weights, Dimensions, and Designs
Shipping weights and dimensions provided by Seller, whether in its catalog or otherwise, are as close to actual as practicable but are not guaranteed. Seller shall not be liable for any discrepancy between actual weight or dimensions shipped and listed data. All designs and specifications are subject to change without notice.
7. Shipping and Packaging
All Goods are carefully packed for shipment, and Seller shall 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 the carrier, but Seller will reasonably assist Buyer in securing satisfactory adjustments for such claims. In the absence of shipping instructions, Goods will be shipped by the method and via the carrier(s) Seller, in its sole discretion, believes to be dependable. Goods held by Seller beyond the original invoice date for Buyer’s convenience will be priced as of either the date of completion or the date of the original order, whichever results in the higher price, and the terms of payment will apply from the original order date. Buyer shall reimburse Seller for reasonable charges for warehousing and other associated expenses incurred as a result of such delayed shipping.
8. Cancellation
An order may not be canceled by Buyer for changes in specifications, shipping schedules, or other reasons without Seller’s prior written consent and then only upon Buyer’s agreement to compensate Seller for losses resulting from such cancellation or changes.
9. Compliance with Laws and Safety Regulations
Buyer is solely responsible for assuring the safe use, maintenance, and operation of all Goods provided by Seller, including any options, safety equipment, and additions. Buyer is also solely responsible for compliance with all applicable requirements or recommendations of any supplier or subvendor of Seller, OSHA, and any other local, state, federal, or international treaties, statutes, laws, or regulations as they may pertain to the sale, transport, alteration, operation, or use of the Goods.
10. Seller’s Warranty and Limitation of Liability
Seller warrants that the Goods 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 the date of installation or eighteen (18) months from the date of shipment from Seller’s facility, whichever occurs first.
Buyer shall inspect the Goods upon receipt and shall be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any Nonconforming Goods within five (5) days after delivery. “Nonconforming Goods” means only that the product shipped is different from that identified in the Sales Order Confirmation or that the label or packaging incorrectly identifies its contents.
If, during the applicable warranty period, (i) Buyer provides written notice to Seller within ten (10) days after discovery of any alleged defect, including a detailed description of such defect, (ii) Buyer returns the Goods to Seller, F.O.B. Seller’s facility, within thirty (30) days after providing such notice, and (iii) Seller’s examination proves to Seller’s satisfaction that the Goods are defective and that the defect was not caused by accident, abuse, misuse, neglect, improper installation or testing, or unauthorized repair or modification, then Seller shall, within a reasonable time and at its sole option, repair, replace, or credit Buyer for such Goods. Failure to provide timely written notice or to return the Goods within the stated time constitutes a waiver of all claims by Buyer.
Seller shall return any Goods repaired or replaced under this warranty to Buyer F.C.A. Seller’s facility, Huntersville, North Carolina. Performance of this warranty does not extend or renew the warranty period.
This warranty constitutes Seller’s exclusive liability and the sole and exclusive remedy of Buyer and all others claiming under, with, or through Buyer for any breach of warranty or other nonconformity of the Goods supplied by Seller. This warranty is exclusive and in lieu of all other warranties, express or implied, arising by trade usage or statute, including, without limitation, warranties of merchantability and fitness for a particular purpose, all of which are expressly disclaimed to the fullest extent permitted by law.
Seller shall not be liable for, and Buyer assumes all responsibility for, personal injuries and property damage resulting from the handling, possession, installation, or use of the Goods supplied by Seller.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR PROFITS OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FURNISHING, PERFORMANCE, OR USE OF ANY GOODS OR SERVICES SOLD BY SELLER TO BUYER, WHETHER BASED ON CONTRACT, WARRANTY, STATUTE, TORT, OR OTHERWISE. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY ORDER SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY BUYER FOR THE SPECIFIC GOODS GIVING RISE TO THE CLAIM. BUYER SHALL NOT SET OFF OR RECOUP ANY AMOUNTS AGAINST SUMS DUE TO SELLER. THESE LIMITATIONS OF LIABILITY ALSO APPLY TO ANY INJURIES OR DAMAGES OF WHATEVER NATURE RESULTING IN ANY WAY FROM BUYER’S USE OF ANY ENGINEERING RECOMMENDATIONS, TECHNICAL ASSISTANCE, ADVICE, OR DATA SUPPLIED BY SELLER IN CONNECTION WITH THE GOODS.
11. Non-Warranty Returns for Repair
If Buyer wishes to return Goods for repair for causes not covered by Seller’s warranty, Buyer shall first notify Seller in writing and, after receipt of a shipping authorization, may return the Goods to Seller’s place of business with freight prepaid. Seller’s Service Department may repair such Goods at Seller’s then-current prices for repair services, as communicated to and accepted by Buyer in advance. When requesting a non-warranty return, Buyer shall provide all available information regarding the issues encountered, including complete details concerning installation and use.
12. Returns for Credit
No returns of Goods, whether for credit or otherwise, will be accepted unless Buyer first obtains Seller’s prior written permission, which may be granted or withheld in Seller’s sole discretion, and then only from the original purchaser. All approved returns are accepted for credit only; under no circumstances shall Seller be obligated to issue a refund of monies previously paid.
Only sizes and designs included in Seller’s current product line and in active demand may be accepted for credit. Credit will be based on the prices prevailing at the time of return, or the invoiced price, whichever is lower, and will be subject to deductions for all expenses incurred in restoring the Goods to a sellable condition. Obsolete, discontinued, or specially manufactured Goods may be accepted solely at Seller’s discretion and only on such credit terms as Seller determines.
13. Ownership and Other Rights
Title and risk of loss pass to Buyer upon delivery of the Goods at the delivery point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Seller may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect Seller’s security interest in such Goods. Seller shall be entitled to all applicable rights and remedies of a secured party under applicable law. The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code.
Buyer acquires no intellectual property or proprietary rights in the Goods.
14. Indemnification
Buyer agrees to indemnify and hold Seller and its officers, directors, employees and agents (the “Seller Indemnitees”) harmless from and against any and all losses, liabilities, damages, claims (including third-party claims), deficiencies, fines, assessments, taxes, penalties, interest, costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses (collectively, “Losses”) incurred by any Seller Indemnitee arising out of or relating to (i) Buyer’s breach of this Agreement, (ii) the negligent or willful acts or omissions of Buyer or its employees or agents, or (iii) Buyer’s use or operation of the Goods, including, without limitation, Buyer’s sale of the Goods, whether alone or as a component of Buyer’s products, to its own customers.
15. Governing Law, Arbitration, and Forum Selection
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, excluding its conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in Mecklenburg County, North Carolina, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The prevailing party may recover its reasonable attorneys’ fees and costs. Notwithstanding the foregoing, either party may seek provisional injunctive relief or small claims relief in a court of competent jurisdiction. claims relief in a court of competent jurisdiction.
16. Foreign Trade Control Compliance
A. Foreign Trade Control Regulations
Buyer shall comply with all applicable Foreign Trade Control Regulations (meaning all applicable sanctions, embargoes, import and (re-)export control regulations, such as supervised by customs authorities, and in any event those of the European Union, the United States of America, China, India and any other locally applicable jurisdiction, as amended from time to time including successor regulations).
B. Information Exchange
The Parties will cooperate and exchange information as reasonably required.
If required under applicable law or agreed to in the specifications of the Order, the Seller shall advise the Buyer the following information and data required by the Buyer for purposes of Foreign Trade Regulations for the Goods under this Agreement:
(i) applicable export control list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List, if the goods or services are subject to the U.S. Export Administration Regulations;
(ii) the statistical commodity code according to the current classification for foreign trade statistics and the Harmonized System code;
(iii) the country of origin (non-preferential origin) and, upon Buyer’s written request, documents to prove the non-preferential origin; and
(iv) the preferential country of origin, and, upon Buyer’s written request, documents pursuant to the requirements of the applicable trade laws to prove the preferential origin (e.g. supplier’s declaration).
Buyer shall promptly provide, upon Seller’s written request, information about end users, the intended use, the location of use, and the final destination of the Goods, and shall execute any documents reasonably required to evidence compliance with applicable Foreign Trade Control regulations.
C. Foreign Trade Checks for Products or Services
Before Buyer performs any transaction with a third party concerning the Products or Services delivered by Seller, Buyer will check and ensure by appropriate measures (e.g., monitoring) that:
a. Buyer does not violate any Foreign Trade Control Regulations with its use, transfer, or distribution of such Products or Services, the brokering of contracts, or the provision of other economic resources in connection with Products or Services, including any prohibitions on circumvention (e.g., by undue diversion);
b. the Products or Services are not intended for prohibited or unauthorized non-civilian purposes (for example: armaments, nuclear technology, or any other defense and military use); and
c. Buyer has screened all direct and indirect parties involved in the receipt, use, or distribution of the Products or Services against all applicable restricted party lists of the Foreign Trade Control Regulations concerning trading with the entities, persons, and organizations listed there.
D. No (Re-)Export to Sanctioned Countries
Buyer will:
a. not export or re-export, directly or indirectly (e.g., via Eurasian Economic Union (EAEU) countries), any Goods to or for use in any country subject to a sanction by the European Union, China, India, the United States, in particular sanctions related to Russia or Belarus;
b. undertake its best efforts to ensure that the purpose of this Section is not frustrated by third parties and ensure that the obligations under this Section are contractually passed on, including authorized channel partners (distributors, resellers etc); and
c. establish and maintain an adequate monitoring mechanism to detect conduct by any third parties that would frustrate the purpose of this Section and maintain evidence of having included contractual provisions as per b.
E. Condition, Suspension and cooperation Condition.
Seller shall not be obliged to fulfill any Order if prevented by:
a. impediments arising out of national or international foreign trade issues;
b. impediments arising out of customs requirements; or
c. any Foreign Trade Control Regulations.
F. Suspension and cooperation.
Seller may limit or suspend its performance under this Agreement, in its sole discretion, if Buyer or Buyer’s users fail to comply with applicable Foreign Trade Control Regulations. The parties shall use commercially reasonable efforts to mitigate the effects of any such suspension or limitation, subject to Foreign Trade Control Regulations.
G. Breach of Foreign Trade Control Regulations
Any breach of this Section 16 constitutes a material breach of this Agreement. Upon such breach, Seller may exercise any or all of the following remedies:
a. the Buyer shall indemnify and hold harmless Seller on first written demand for the full cost of any enforcement penalties and for any other related losses, including any enforcement penalties imposed and Seller’s reasonable legal fees,
b. terminate the Agreement in writing (email suffices) with immediate effect; and
c. retain any advance payments received as nonrefundable compensation, regardless of whether the Goods have been delivered or Services performed.
H. Special Data Handling
If Buyer intends to disclose to Seller any information that is defense-related or requires controlled or special data handling, including but not limited to information subject to ITAR, EAR, or national security classification schemes, in addition to above obligations Buyer will:
a. notify Seller in advance;
b. use the disclosure tools and methods Seller reasonably requires.
I. Special U.S.-China Semiconductor Development
Without Seller’s prior written consent, and in addition to the foregoing obligations, Buyer shall not use any goods, software, documentation, or technical data sold under this Agreement to design, develop, produce, or test integrated circuits at any advanced semiconductor fabrication facility located in the People’s Republic of China or any other location subject to restrictions under 15 C.F.R. § 744.23, as amended or replaced.
17. Assignment
Buyer may not assign this Agreement without Seller’s prior written consent.
18. Relationship of the Parties
The parties are independent contractors, and nothing in this Agreement creates any agency, partnership, or joint venture relationship.
19. No Third-Party Beneficiaries
This Agreement is for the benefit of the parties and their permitted assigns only, and confers no rights on any third party.
20. Survival of Obligations
All provisions of this Agreement that by their nature should survive termination shall survive. The invalidity or unenforceability of any provision shall not affect the remainder of this Agreement.
21. Acceptance, Waiver, and Acknowledgment
Acceptance of delivery constitutes acceptance of these Terms and Conditions. No waiver shall be effective unless in writing, and no waiver shall be deemed a continuing waiver unless expressly stated.
Effective date: 06012026