1.1 The deliveries and services of Kern Industrie Automation GmbH & Co.KG are exclusively subject to these Terms and Conditions (T&Cs). These are part of all contracts entered into and are also applicable to all future business relationships even if they have not been expressly agreed again.
1.2 The customer accepts these T&Cs with the placing of the order but no later than at the time of receipt of the deliveries or services.
1.3 Any conflicting Terms and Conditions or conflicting counter confirmations by the customer shall not be binding for Kern Industrie Automation GmbH & Co.KG even if Kern Industrie Automation GmbH & Co.KG did not reject these expressly. They shall require the express written acknowledgement from Kern Industrie Automation GmbH & Co.KG to be legally effective. The start and/or the carrying out of deliveries and services or the receipt of payments shall under no circumstances constitute acceptance of the customer conditions.
1.4 No changes and supplements as well as oral subsidiary agreements have been made to the contract which is based on these T&Cs. Contract changes or contract supplements shall only be valid if they were drawn up in writing. The requirement of the written form can also only be cancelled in writing.
2.1 Kern Industrie Automation GmbH & Co.KG reserve the unrestricted property rights and copyrights for the use of all proposals by Kern Industrie Automation GmbH & Co.KG, especially cost estimates, drawings, programs as well as their enclosures in the form of drawings, sketches and other documents. They shall only be made available to third parties and/or used by the recipient after prior written consent from Kern Industrie Automation GmbH & Co.KG.
2.2 Proposals and their enclosures from Kern Industrie Automation GmbH & Co.KG shall be returned to Kern Industrie Automation GmbH & Co.KG on request if the order is not placed with Kern Industrie Automation GmbH & Co.KG or if it is terminated prematurely.
3.1 Kern Industrie Automation GmbH & Co.KG shall be bound to their proposal for a period of 2 months. This binding period can be agreed differently if it is stated separately in the proposal. The details and information contained in the proposal and enclosures such as in particular technical descriptions, drawings, sketches, images, data, programs and performance ratings shall be non-binding.
3.2 The information contained in the proposal documents shall be verified by the recipient of the proposal during the proposal phase to ensure feasibility within the framework of the intended project. In case of inconsistencies, Kern Industrie Automation GmbH & Co.KG shall be informed within 7 working days of receipt of the documents. Otherwise the customer shall be responsible for any flaws and deviations arising from this.
3.3 The customer is liable for the accuracy of stated measurements and the accuracy of any design drawings supplied by the customer as well as any other information affecting the suitability of the ordered delivery/service for the intended use. The customer shall also be liable for any infringements on third-party patent or other intellectual property rights through use of the drawings and documents. As far as that goes, the customer shall release Kern Industrie Automation GmbH & Co.KG from any third-party liability claims on first request. Kern Industrie Automation GmbH & Co.KG shall not be obligated to verify whether any third-party intellectual property rights are being infringed by the implementation according to the documents made available to Kern Industrie Automation GmbH & Co.KG.
3.4 All contracts shall only become effective with confirmation of the order by Kern Industrie Automation GmbH & Co.KG which can also be issued at the same time as the invoice. Until then the proposals by Kern Industrie Automation GmbH & Co.KG shall remain non-binding and subject to confirmation.
4.1 Any declarations of intent towards the conclusion of the contract by Kern Industrie Automation GmbH & Co.KG shall be effective exclusively in written form. Oral declarations shall only become effective through written confirmation by Kern Industrie Automation GmbH & Co.KG. It shall not be possible to force the conclusion of a contract through unilateral written reference by the recipient of the proposal to contract negotiations having taken place. Failure to respond on the part of Kern Industrie Automation GmbH & Co.KG shall in no case be regarded as consent. The contents shall exclusively be acknowledged through written counter confirmation by Kern Industrie Automation GmbH & Co.KG.
4.2 Kern Industrie Automation GmbH & Co.KG reserve the right to deviate from the drawings and descriptions enclosed with their proposals even after submission of the order confirmation where these deviations arise from production considerations or from improvements, experience and technical developments as far as this is reasonable for the client under consideration of the interest of Kern Industrie Automation GmbH & Co.KG in the change. The same shall apply to weight and measurement differences which are customary in the industry.
5.1 Prices are net without deductions plus the respective statutory VAT where applicable. Packaging, shipping and freight costs are invoiced separately.
5.2. All payments shall be made in Euro to a bank account named by Kern Industrie Automation GmbH & Co.KG. Cheques or bank drafts shall only be accepted if the drawee is a major German bank. Payments by cheque or bank draft shall only be regarded as performance; the payment shall only be considered fulfilled after honouring and the expiry of a cancellation period of 5 bank working days.
5.3 Invoices shall be issued with every individual delivery/service. Payments are due within 14 days from date of invoice. No cash discounts shall be granted. 30 days after the due date, Kern Industrie Automation GmbH & Co.KG shall start charging interest at a rate of 8 per cent above the respective interest rate of the European Central Bank.
5.4 Any changes to the order agreed subsequently shall authorise Kern Industrie Automation GmbH & Co.KG to charge the customer for the arising additional costs. Any lower order costs shall be refunded to the customer after deduction of the additional costs caused by the change.
5.5 The prices agreed at the time of conclusion of the contract shall be based on the valid cost factors at that time, particularly material prices, wages, energy costs, taxes etc. If the agreed delivery/service date is more than 4 weeks after conclusion of the contract, Kern Industrie Automation GmbH & Co.KG shall be entitled to carry out an appropriate price adjustment as far as the cost factors mentioned above should have changed.
5.5 Notwithstanding the rights they are otherwise entitled to, Kern Industrie Automation GmbH & Co.KG shall be entitled to withdraw from the contract and to take back the delivery to secure their rights if the customer should default on the payment. Kern Industrie Automation GmbH & Co.KG shall have announced this measure and granted the customer a reasonable grace period for payment. Where payments on account were agreed, Kern Industrie Automation GmbH & Co.KG shall be entitled to demand immediate payment of the remaining outstanding order price if the customer defaults on a due instalment or if the customer stops payments or if the customer’s financial situation deteriorates substantially so as to present a concrete threat to the claims of Kern Industrie Automation GmbH & Co.KG. Proof of substantial deterioration of the financial situation shall be in particular the realised or impending insolvency or debt overload of the customer, initiation of foreclosure measures by the customer’s creditors, submission of uncovered cheques, protests of bill, pronouncement of a no-lien affidavit, non-payment of a due instalment or a corresponding reference from a bank or credit reference agency which corresponds to due diligence of a prudent businessman.
5.6 The customer shall be entitled to offset only uncontested or legally established claims against Kern Industrie Automation GmbH & Co.KG. The customer shall also be authorised to exercise the right of retention only in as far as their counterclaim is based on the same contractual relationship.
6.1 A stated period of delivery/service shall begin with the day of complete order clarification and – if the customer has to supply technical documents, material, substances, tools or other items or documents or make any down payments – with the date of their receipt or provision.
6.2 Compliance with agreed deadlines for deliveries and/or services shall require timely receipt of all documents to be supplied by the customer, required approvals and releases, particularly of plans, as well as compliance with the agreed terms of payment and other obligations through the contract party. If these preconditions are not met in time the periods shall be extended adequately. This shall not apply if Kern Industrie Automation GmbH & Co.KG are responsible for the delay.
6.3 If Kern Industrie Automation GmbH & Co.KG should default the customer shall be entitled to demand compensation of 0.5 % for each full week of delay but no more than a total of 10 % of the agreed remuneration for the delayed goods or services if the customer is able to substantiate that the delay has caused damage for them. Customer claims for compensation which go beyond the limit stated above shall be excluded in all cases of delayed delivery/service, even after expiration of a period of grace possibly granted to Kern Industrie Automation GmbH & Co.KG.
6.4 If the delivery/service is delayed through circumstances which fall within the area of risk borne by the customer, the customer shall be liable for the costs for waiting time and additionally required travel of Kern Industrie Automation GmbH & Co.KG personnel within a reasonable scope.
6.5 Mandatory statutory liability regulations, e.g. liability in case of acceptance of a guarantee, liability for deliberate and grossly negligent actions, for damage to life, body or health, infringement of essential contractual obligations, liability according to the product liability law and the regulation about the sale of consumer goods, remain unaffected.
Any acts of God, unforeseeable work, traffic or shipping interruptions, fire damage, flooding, unforeseeable lack of work force, energy, raw materials or auxiliary materials, strikes, lock-outs, official orders or any other hindrances for which Kern Industrie Automation GmbH & Co.KG are not responsible and which delay or prevent the delivery/service or make it unreasonable shall relieve Kern Industrie Automation GmbH & Co.KG from the obligation for delivery/service for the period and scope of the interruption. Both parties shall have the right to withdraw from the contract if the disruption delays the delivery/service by more than eight weeks.
8.1 The customer’s claims under warranty shall be limited to the right to supplementary performance (through remedy of the defect or through replacement, at customer’s choice). If the supplementary performance through Kern Industrie Automation GmbH & Co.KG fails the customer shall have the choice to reduce the price proportionately or to withdraw from the contract. This does not affect claims for compensation under item 9.
8.2 Customer claims due to expenses required for the purpose of supplementary performance, particularly transport, travel, work and material costs, shall be excluded in as far as the expenses increase due to the item having been moved to a location differing from the initial place of delivery/service, unless the move corresponds to the intended use of the item.
8.3 The customer shall grant Kern Industrie Automation GmbH & Co.KG the time and opportunity for redressal of any faults required within reasonable discretion. If the customer does not grant this, Kern Industrie Automation GmbH & Co.KG shall be relieved of liability for defects.
8.4 The customer shall be entitled to independently redress the fault or have it redressed by a third party and demand adequate compensation for the costs from Kern Industrie Automation GmbH & Co.KG only in urgent cases where operational safety is at risk – of which Kern Industrie Automation GmbH & Co.KG shall be informed immediately – or in case of prior written consent by Kern Industrie Automation GmbH & Co.KG.
8.5 If the warranty is a recourse of the customer after a claim has been made against them successfully according to the provisions of the consumer goods sales act, the claims for recourse shall remain unaffected based on the provisions about consumer goods sales. Item 9 shall apply to the claim for compensation.
8.6. Guarantee agreements shall be made in writing. A guarantee declaration shall only be effective if it describes the content of the guarantee and the geographical scope of validity of the guarantee protection with sufficient detail.
8.7 Warranty claims shall not exist in case of only insignificant deviation from the agreed quality, in case of only insignificant impairment of usability as well as in case of non-reproducible software errors. Secondary claims or claims other than the ones regulated in this item made against Kern Industrie Automation GmbH & Co.KG, their bodies, employees and agents by the customer based on a defect, especially claims for compensation for damages which did not occur on the delivery/service item directly, shall be excluded. This shall not apply to liability from intent or gross negligence.
8.8 The customer shall advise about any defects in writing immediately after delivery or completion of the service. In case of hidden defects the customer shall inform Kern Industrie Automation GmbH & Co.KG immediately after discovery of the defect in writing. Otherwise all claims for compensation shall be excluded.
8.9 Any warranty claims arising from improper use, changes or interventions, faulty installation, repair or maintenance by the customer or a third party shall be excluded.
8.10 If Kern Industrie Automation GmbH & Co.KG have acted on the basis of a notification of defect without the customer having proven a fault/defect, Kern Industrie Automation GmbH & Co.KG shall be entitled to demand remuneration for their expenses.
9.1 Any claims for damages and reimbursement of expenses by the customer (in the following: claims for damages), regardless of the legal reason, particularly due to infringement of duties from the obligation and due to prohibited actions, shall be excluded.
9.2 This shall not apply in case of mandatory liability, e.g. according to product liability law, in cases of intent, of gross negligence, due to damage to life, body or health, due to infringement of essential contractual obligations. A claim for compensation for the infringement of essential contractual obligations shall, however, be limited to the foreseeable damage typical to the contract as far as there was no intent or gross negligence or the liability is due to damage to life, body or health. The provision under 6.3 in case of delay shall take priority.
9.3 The aforementioned provision does not entail a change in the burden of proof to the customer’s disadvantage.
9.4. Claims for compensation for the loss of stored data shall be excluded if the damage would not have occurred in case of proper data backup.
10.1 Customer claims under warranty shall come under the statute of limitations after 12 months from the statutory start of limitations unless the warranty claims are for a delivered service which was used for a structure according to its normal manner of use and caused the faultiness of this structure – in this case the term of limitation shall be 24 months.
10.2 Mandatory statutory limitation and liability regulations, e.g. liability in case of acceptance of a guarantee, liability for deliberate and grossly negligent actions, for damage to life, body or health, infringement of essential contractual obligations, liability according to product liability law and the regulation about the sale of consumer goods, shall remain unaffected.
11.1 Any disputes arising directly or indirectly from an order or in connection with an order shall be exclusively settled before a competent court of law at the company domicile of Kern Industrie Automation GmbH & Co.KG. Kern Industrie Automation GmbH & Co.KG. shall have the right to sue the customer at their domicile as well.
11.2 German law shall apply to the contractual relationships with exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 and the conflict rules of international private law.
If individual provisions of these T&Cs are invalid, as a whole or in part, the remaining provisions or the remaining parts of such provisions shall remain unaffected. The parties shall replace an invalid provision with a provision which most closely approximates the economic effect of the invalid provision and is valid.
As at October 2012 ©
KERN Industrie Automation
GmbH & Co.KG
Tel.: +49 26 24 / 94 71 2-0
Fax: +49 26 24 / 94 71 2-99