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General Terms and Conditions, January 2011 - Schweißtechnik Burkhard GmbH

A. Preamble

1) We provide services to our General Terms and Conditions only, as stipulated below, even when not expressly referred to in ongoing business relationships. Any amendments to these General Terms and Conditions, in particular the Customer's deviating Terms and Conditions, are hereby gainsaid. Lack of objection to deviating Terms and Conditions on our part may not be construed as agreement to them, even if we perform the service without reservation. The Customer declares agreement with the exclusive validity of our General Terms and Conditions when accepting our services.

2) All offers submitted by us are subject to confirmation. Orders are regarded as accepted only after they are confirmed in writing.

3) All agreements made in order to complete the job must be made in writing.

B. Information and Customer Cooperation

1) The parts for processing and treatment (hereinafter 'parts') must be delivered free from all surface soiling (dirt, greases, oils, emulsions, etc.), ready for welding and shipping paid by the customer to our works.

2) An order or delivery note including the following information must be provided with the parts: designation, number of pieces, net weight, value and packaging; material quality (standard designation or steel name and manufacturer).
Clear specifications and drawings, including information on fits, shapes, methods, welding consumables and splash-free zones must be provided with welding jobs.

3) The parts must be tested by the Customer for the required parameters such as sealing, strength, etc., before processing. Testing by the Vendor is only carried out if separately agreed.

C. Time of Performance

1) Adherence to the performance times (performance times, i.e. performance dates and deadlines) assumes the Customer's contractual obligations and responsibilities are fulfilled. Performance deadlines therefore only begin after delivery of our order confirmation to the Customer, but not prior to delivery of the parts and before transmission of the information and documents etc. required from the Customer, and also not before receipt of any agreed advance payment, guarantee, etc.; performance dates in such cases are postponed accordingly.
Any amendments or extensions to the original scope of services made after the agreement is complete, extend or postpone the original performance dates and deadlines accordingly.
The performance time is adhered to if the parts leave our works or shipping readiness has been notified before the performance time elapses. Part-performance is permitted.

Die Leistungszeit ist eingehalten, wenn bis zu ihrem Ablauf die Teile unser Werk verlassen haben oder die Versandbereitschaft mitgeteilt ist. Teilleistungen sind zulässig.

2) Performance impairment due to force majeure or as a consequence of labour disputes, official intervention, disruptions in operations, material procurement or power supply difficulties, or other unforeseeable or exceptional circumstances and situations beyond our control, extend the performance time by the duration of the delay. This does not include cases in which we accepted deadline obligations despite these situations being foreseeable, or possible and reasonable measures to avoid or prevent performance impairment were not taken. In line with the aforementioned regulations we are not responsible for the circumstances mentioned if they develop during an already occurring delay. We must immediately inform the Customer about the commencement and probable duration of such impairments. Inasmuch as the fulfilment of the agreement becomes impossible or economically unviable as a consequence of these circumstances, we may withdraw from the agreement wholly or in part. The same applies if we can no longer specify when we can fulfil the agreement as a result of these circumstances. The Customer may not claim for damages for such withdrawal. If we wish to make use of our right to withdrawal we must immediately communicate this to the Customer after assessing the consequences of the events, even if an extension to the performance deadline and/or a postponement of the performance date were previously agreed upon with the Customer.

3) If the Customer suffers damage due to a delay we are responsible for, the Customer is entitled to claim for damages. The damages are limited to 0.75% for each commenced week of delay, but a maximum of 7.5% of the job value. This does not affect our liability as described in Section G of these General Terms and Conditions.

D. Delivery and Assumption of Risks

1) Finished parts must be collected by the Customer from our works. If they are shipped at the Customer's request, it is at the Customer's cost and risk.

2) Risk is transferred to the Customer at the commencement of parts loading at the latest, including in the case of partial shipment or if we have accepted other services such as shipping costs or shipping itself.

3) If shipping is delayed due to circumstances for which we are not responsible, or if the Customer collects, the risk is transferred to the Customer on the day of readiness for shipping.

E. Prices and Payment

1) Prices are ex-works, but apply for packaging, shipping and insurance only. If parts are not degreased on receipt, degreasing is additionally invoiced. VAT is added to the agreed prices at the usual rate.

2) Our invoices are due without deductions immediately upon receipt. If parts are not collected or shipped upon completion, but at a later date at the Customer's request, we are entitled to invoice for the work on the day the services were completed and collection/shipping could have occurred.

3) The Customer is not entitled to set off any claims against our receivables, inasmuch as the counter-claims are not uncontested or legally effective.

F. Defects

1) Welding works are carried out in accordance with the agreement made with the customer and with current best practice. That is, we can only guarantee correct execution, but not its result, inasmuch as this is not separately agreed on. In particular, due to hidden faults, unfavourable shapes, etc., we offer no guarantee for freedom from warping and cracks, leaks, surface hardness, hardness penetration depth, full hardening, galvaniseability, etc.; they therefore do not represent defects.

2) In addition, claims arising from defects are also invalid if the agreed condition of the parts cannot be achieved because the Customer provided incorrect or incomplete data or the parts exhibit properties or are not assembled or prepared in the way agreed on, unless we were aware of these properties, assembly or preparation details, or they could have been recognised by us, or if we are otherwise to blame.

3) Customer claims arising from defects expire after one year. This does not apply to parts used in a structure as part of their usual purpose and which have caused its deficiency.

4) We may decline remedy as long as the Customer obligations have not been met. This does not affect any right to retainment due to defects up to twice the cost of remedying the defect.

G. Liability

1) Any damage claims by the Customer due to any breaches of obligations arsing from the debt relationship and from punitive damage are excluded, in particular in terms of subsequent damage (including loss of production and loss of profits). The same applies to claims for compensation of expenses in accordance with § 284 German Civil Code.

2) Our liability for damage arising from hazards to life, limb and health, for claims in accordance with product liability laws, for guarantees (with the exception of subsequent defect damage outside of the guarantee) and for all foreseeable, wilful or grossly negligent damage is not affected. We assume liability for property damage as a result of simple negligence inasmuch as we are in a position to acquire cover under our existing liability insurance.

3) We are also liable for the culpable violation of principal contractual obligations in terms of § 307, Para. 2, No. 2, German Civil Code in cases of simple negligence, but only for foreseeable damage and only up to a maximum of
€ 500,000.00.

H. Place of Performance, Place of Jurisdiction and Governing Law

1) The exclusive place of performance for both parties to the agreement is our company headquarters in 87600 Kaufbeuren, Germany. Inasmuch as our Customers are merchants, legal persons under public law or special assets of the Federal Government of Germany, or have no general place of jurisdiction within the Federal Republic of Germany, the courts of law at our company headquarters in 87600 Kaufbeuren are deemed responsible. However, we are also entitled to make claims in any other jurisdiction.

2) Legal relations with the Customer are subject exclusively to the laws of the Federal Republic of Germany.

I.Burden of Proof, Amendments, Invalidity Clause

1) Existing burden of proof regulations in favour of the Customer are not affected by these General Terms and Conditions.

2) Amendments to these General Terms and Conditions or other contractual arrangements must be made in writing.

3) If individual provisions of these General Terms and Conditions are ineffective by law or individual agreement, the effectiveness.

Schweisstechnik Burkhard GmbH | Julius-Probst-Str. 7 | D-87600 Kaufbeuren | Tel.: 0049/8341/908489-0 | Fax: 0049/8341/908489-11 | schweisstechnik@burkhard-group.com