Terms and conditions for repair and refurbishing work from Kern GmbH
1. Area of application
These terms and conditions apply to all inspections, modifications, repairs and reconditioning work (following "order"), unless agreed otherwise expressly or by KERN in writing. Different conditions from customers are not applicable, regardless of whether they were rejected individually or not.
2. Scope of service
The scope of services has to be provided in writing in a separate contract agreement, which then apply to these terms and conditions.
3.1 If the parties agree a fixed price for the order, this price is based on the time of the agreement contract scope. The price is binding and subject to Clause 3.3 covers all costs and expenses associated with the execution of the order.
3.2 If the parties agree no fixed price, KERN GmbH has the right to charge the completed order at the current KERN GmbH rates. KERN GmbH is to be reimbursed by the customer for all other expenditure (for example, packaging costs, transport costs), which are actually incurred. Submitted cost estimates are, unless expressly agreed otherwise, without obligation.
3.3 The prices according to paragraphs 3.1 and 3.2 do not include transport and insurance costs, V.A.T. (Value Added Tax) and, unless otherwise agreed, exclusive of other fees and charges.
4. Terms of payment
4.1 All our invoices are due 10 days from date of invoice, unless expressly agreed otherwise, without any deductions.
4.2 The customer is entitled to withhold payments due to or set-off counterclaims only if these are established judicially or are undisputed.
5. Subcontractors, and procurement of spare parts KERN GmbH
Kern has the right to award the contract in whole or in part, to sub-contractors. Unless otherwise agreed with the customer, KERN GmbH is free and authorized to select the spare parts as well as their suppliers. The use of subcontractors has no effect on the quality of the order.
6. Technical documentation and repair requirements
The customer informs KERN GmbH about the relevant operating conditions during his inquiry and passes on the technical documentation that is necessary for the completion of the order. This documentation shall remain the property of the customer and is used by KERN GmbH and its subcontractors exclusively to complete the order. If the customer does not specify requirements on the result of the contract, is the KERN GmbH definition is binding.
7. Transport and insurance for repairs at KERN GmbH subcontractor's facilities
7.1 Unless otherwise agreed in writing, a customer request for the delievery and removal of the contract item - including the possibility of packing and loading - done on his behalf, is done at the customer's expense. Otherwise the contract item is delievered by the customer to KERN GmbH and also picked up again.
7.2 The customer bears the transport risk.
7.3 At the request of the customer and at their cost, the transport can be insured against transport risks, for example: theft, breakage, fire.
7.4 During the repair period at KERN GmbH or at the subcontractor, there is no insurance coverage
The customer has to make sure the existing insurance coverage for the contract item, i is provided for, e.g. to provide for events of fire, water damage, storm and machinery breakdown. Only at the express request and expense of the customer can insurance coverage for these risks be acquired. Only at the express request and expense of the customer may the insurance coverage for these risks be acquired.
7.5 In case of customer delays with the acquisition of the contracted item, KERN GmbH can charge for storage fees. The contracted item may also be stored elsewhere at the discretion of KERN GmbH. Costs and risk of storage are carried by the customer.
8. Payments due
8.1 A service period is only binding if expressly agreed in writing.
8.2 KERN GmbH has the right to exceed any agreed service time in the following cases: a) Subsequently agreed extensions of the contract scope, or b) Reasons for relief listed in section 12, or c) from the customer represented delay in the implementation of the order.
9. Reservation of title, extended lien
9.1 KERN GmbH reserves the ownership rights of all accessories, spare parts and other elements until all payments from the order are paid in full. Additional security arrangements can be made.
9.2 KERN GmbH has under contract a lien on the basis of the order and has in it's possession the object of the contract. The lien may be used for claims arising from work previously performed, spare parts and other services as far as they relate to the contract work. For other claims from the business, the lien applies only to the extent they are undisputed or legally enforceable in court.
10. Warranty Claims
10.1 After completion of the order KERN GmbH is liable for defects to the order under exclusion of all other claims of the customer without prejudice to No. 5 and Section 11 in such a way that it has to remedy the defects. The customer has to notify KERN GmbH at once in writing without undue delay regarding any defects.
10.2 The liability of KERN GmbH does not exist when the defect is irrelevant to the interests of the client or based on a circumstance attributable to the customer. This is particularly true with respect to the customer-supplied parts for defects that are from shipping damage, incorrect maintenance by the customer, incorrect assembly, installation or storage or due to improper use.
10.3 Improper changes or maintenance work carried out by the customer or third party without prior consent of KERN GmbH, means KERN GmbH is excempt from liability for the resulting consequences. Only in urgent cases of danger to operational safety and to prevent excessive damage, whereby KERN GmbH is to be notified immediately, or when KERN GmbH has defected on a reasonable period to remedy the defect, the customer has the right to fix the defect itself or through third parties and to demand reimbursement of the costs from KERN GmbH.
10.4 KERN GmbH has to carry the direct costs incurred of remedial - if the complaint proves to be justified - the cost of the replacement item, including shipping. KERN GmbH also bears the costs of removal and installation as well as the costs of any necessary provision of technicians and assistants, including travel expenses, insofar as this does not consist of any disproportionate burden to KERN GmbH compared with the value of the contract.
10.5 If KERN GmbH - taking into account the statutory exceptions - passes a reasonable time period set for correction of defects, then the customer as part of legal regulations can expect a right of reduction. The right of reduction for the customer's also exists in other cases of failure to remedy defects. Only if the improvement demonstrated to the customer after reduction is not interesting, the customer may cancel the contract.
10.6 Warranty claims expire after a period of 12 months starting 7 working days after dispatch or - in the event of collection by the customer - after release of the container for transportation.
11. KERN GmbH liability, disclaimer
11.1 If parts of the contract item are damaged through the fault of KERN GmbH, then KERN GmbH has the choice to repair or re- supply it at their expense. The liability is limited to the amount of the contractually agreed contract price. Otherwise, Section 3.11 is valid accordingly.
11.2 If through the fault of the KERN GmbH, the contract item from the customer is not usable as recorded in the contract, as a result of neglect or faulty execution before or after the contract proposals and consultancy as well as other contractual obligations - in particular instructions for operation and maintenance of the subject matter - to the exclusion of further claims the customer, the provisions of sections 10 and 11.1 and 11.3 apply accordingly.
11.3 KERN GmbH is liable for additional damages not incurred on the contract itself, - for whatever legal grounds - only a) with intent, b) for gross negligence of its institution or employees, c) culpable violation of life, body or health, d) culpable violation of essential contractual obligations, e) through defects that KERN GmbH maliciously remained silent on or KERN GmbH garantied their presence, f) for defects of the delivered item, in which there is liability under product liability law for personal injury or property damage to privately used items. KERN GmbH non-leading employees are liable to gross negligence only if they violate fundamental contractual obligations. Here and in cases of liability for ordinary negligence involving a breach of the liability to the typical, reasonably foreseeable direct damage is limited. Further claims of the customer, especially a claim for damages that did not occur on the deliverables themselves are excluded. This also applies to damages based on infringement of property rights and torts. The liability for damages resulting from operational interruption and / or lost profits is excluded except in cases of deliberate wrongdoing. In addition, the customer shall indemnify KERN GmbH and their representatives from claims of third parties that have been made in connection with the contract claim. This applies analogous to the cases in which KERN GmbH is responsbible for recourse.
12. Force majeure
If the contractional work is delayed due to labour disputes, strikes and lockouts and the occurrence of circumstances of which KERN GmbH are not responsible, it shall, if such obstacles are proved to be a considerable hindrance to the completion of the job, a reasonable extension of the deadline in paragraph 8, can be done. This applies also when such circumstances occur ich which KERN GmbH is already in default.
13. Applicable law and dispute resolution / place of fulfilment
13.1 All legal relationships between KERN GmbH and the customer's domestic relations shall apply to each other the relevant laws of the Federal Republic of Germany.
13.2 Jurisdiction is Burladingen. KERN GmbH is entitled to bring actions at the customer's principal place of business.
13.3 Place of fullfillment Burladingen.
13.4 Place of payment Burladingen.