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General terms and conditions
of Kern & Sohn GmbH


01.09.2016

 
 
 
     1. General  
 
 
  1. We deliver exclusively subject to the following general terms of business (terms and conditions).
  2. Our terms and conditions will apply exclusively; we do not accept the customer's terms and conditions, in particular terms and conditions of purchase, that conflict with or vary from our terms and conditions, unless we have explicitly approved their application in writing. Our terms and conditions will also apply even if, in awareness of the customer’s terms and conditions that conflict with or vary from our own terms and conditions, we undertake delivery to the customer without expressing any reservations.
  3. Our quotations are not binding. Orders will only be binding on us provided we confirm them or perform them by sending the product.
  4. The depictions of products and services on our websites or in our catalogues and brochures do not constitute a binding offer.
  5. We sell exclusively to businesses, public sector legal entities or special funds under public law, which use the product exclusively in their independent, professional, commercial, official or functional activity. Therefore, our terms and conditions alone will apply to such businesses or legal entities.
  6. Everything that is agreed between ourselves and the customer for the purpose of execution of this contract is set out in writing in this contract.
 
 
 
     2. Sales prices  
 
 
  1. The products will be charged for at the prices that apply on the date of the order confirmation, plus value added tax at the statutory rate.
  2. However, if a delivery period of more than 4 months from the date of our order confirmation is agreed, or if the delivery cannot be undertaken for more than 4 months from the order confirmation for reasons for which the customer is responsible, we will be entitled to charge the prices that apply on the date of delivery.
 
 
 
     3. Payment terms and conditions  
 
 
  1. Unless agreed otherwise in writing, our invoices will become due for payment immediately upon receipt of the invoice, without any deduction, and must be paid to us, free of transaction charges, no later than the final payment date stated in the invoice.
  2. The customer will be deemed to be in default, even without a formal reminder, at the end of the payment date stated in the invoice. We will be entitled to charge € 2.50 for every formal reminder. If the customer defaults in payment of an invoice, all our receivables owed by the customer under the business relationship will become due for payment immediately. We will thereafter only be obliged to continue to deliver on a cash-in-advance basis.
  3. We accept cheques and bills of exchange at our own discretion, and always as undertakings to pay only. The customer will bear the charges and costs of bills of exchange, and also the risk of their timely presentation and protest.
 
 
 
     4. Setoff and retention  
 
 
  1. The customer will only be entitled to offset claims provided its counterclaims have been established by due legal process, are uncontested or have been acknowledged by us. The customer will also only be authorised to exercise a right of retention provided its counterclaim is based on the same contractual relationship.
  2. If the customer is a trader, it may not plead either non-fulfilment of the contract or the right of retention on the basis of counterclaims.
 
 
 
     5. Delivery time, inability to deliver, force majeure  
 
 
  1. We will endeavour to take into account your wishes as regards delivery times. Binding delivery times will require a separate written agreement.
  2. Adherence to our delivery obligation presupposes timely and proper fulfilment by the customer of its own obligation. We reserve the right to plead non-fulfilment of the contract.
  3. If we default in delivery for reasons for which we are responsible, and if such default arises through intent or gross negligence, or if it represents a breach of a material contractual obligation, statutory liability will apply. However, in the event of a breach of obligation due to only minor negligence, such liability will be restricted to the predictable loss in each case.
  4. If the customer sets us a reasonable additional period after we have already defaulted, it will be entitled to withdraw from the contract if we have ignored that additional period; the customer may make claims for damages for non-fulfilment of the contract in the amount of the predictable loss only if the default is due to intent or gross negligence or the breach of a material contractual obligation; for the rest, the damages liability will be limited to 50% of the loss incurred.
  5. The limitations of liability under (3) and (4) will not apply if a fixed date commercial transaction was agreed; nor will they apply if the customer may assert that it is entitled to make a claim for the immediate assertion of the claim for damages in lieu of performance on the basis of default for which we are responsible.
  6. Instances of force majeure will bring about suspension of the contractual obligation of the parties for the duration of the problem and to the extent of its effect. If the resulting delays exceed a period of 6 weeks, both contracting partners will be entitled to withdraw from the contract with respect to the scope of performance affected. No other claims are admissible.
 
 
 
     6. Reservation of title  
 
 
  1. We reserve title to the product delivered.
  2. The reservation of title referred to under (1) will be upheld until all our receivables under the business relationship have been paid. The same will apply even if the customer has paid individual invoices.
  3. If the customer behaves in breach of contract, in particular if it defaults in payment, we will be entitled to take back the product purchased. If we take back the product purchased, this will equate to withdrawal from the contract. After we have taken back the product purchased, we will have authority to sell it, in which case the proceeds of the sale will be credited against the customer's liabilities, less reasonable sale expenses. We will be entitled to deduct up to 20% from the invoice amount of the products taken back without providing proof, if the customer cannot prove that there was no reduction in value, or only a significantly smaller reduction in value.
  4. The customer will be entitled to dispose of the reserved products during the normal course of its business, unless an exclusion of assignment has been agreed between it and its own customer as regards the receivables arising out of the delivery.
  5. We undertake to release the collateral due to us, at the request of the customer, to the extent that the realisable value of our collateral exceeds by more than 10% the receivables to be secured; we will be responsible for selecting the collateral to be released.
 
 
 
     7. Accepting product returns  
 
 
  1. If we accept product returns in a specific instance, credit for the returned goods will be based on the terms and conditions of our Returns Policy.
  2. (1) will not apply if we are statutorily obliged to accept a product return.
  3. (1) will also apply if we accept the return of a product to which we have retained title.
 
 
 
     8. Part-deliveries, transfer of risk, transportation of the product  
 
 
  1. We deliver ex works. The customer will bear the costs of packaging, freight, postage and customs duties. In the case of deliveries abroad, this will also apply to additionally accruing taxes.
  2. We will only contract insurance at the explicit request of the customer and at the latter's expense.
  3. We may make part-deliveries.
  4. If we undertake transportation of the product from the supply factory or from our warehouse in Balingen to the customer’s place of destination, this will take place for the account and risk of the customer. The same will apply if delivery carriage paid is agreed.
  5. If no specific method of shipment is agreed with the customer, we will select the shipment method and route ourselves. The costs of shipment will be based on our Terms and Conditions of Shipment. The same will apply to part-deliveries.
 
 
     9. Defect liability  
 
 
  1. Defect claims by the customer presuppose that it has duly fulfilled the examination and complaint obligations incumbent on it under Article 377 HGB [German Commercial Code].
  2. Defect notices and complaints will only be valid provided they are set out in writing.
  3. We will be statutorily liable if the customer makes damages claims based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. If we are not charged with intentional breach of contract, the damages liability will be restricted to the predictable, typically occurring loss.
  4. We will be statutorily liable if we culpably breach a material contractual obligation; however, here too the damages liability will be restricted to the predictable, typically occurring loss. If the breach of obligation relates to an obligation upon fulfilment of which the customer has relied and is entitled to rely, this will constitute a material contractual obligation.
  5. This will not affect the liability for culpable loss of life, personal injury or impairment to health; the same will apply to mandatory liability under the Produkthaftungsgesetz [German Product Liability Act].
  6. We may not be held liable except where provided for otherwise above.
  7. This will not affect the period of limitation in the event of recourse against the supplier according to Articles 478, 479 BGB [German Civil Code]; that period is five years from delivery of the defective item.
  8. Data, details, images, descriptions and dimensions will not be binding and will serve only for illustration purposes. We accept no warranty as regards their accuracy; they do not release the customer from the requirement to conduct its own examinations and trials.
 
 
 
     10. Aggregate liability  
 
 
  1. Irrespective of the legal nature of the claim asserted, we may not be held liable for damages beyond what is provided for under no. 9. This will apply in particular to damages claims for negligence during contract conclusion, owing to other breaches of obligation or property damages claims under tort law in accordance with Article 823 BGB.
  2. The limitation under (1) will also apply if, instead of making a claim for damages, the customer demands compensation for wasted expenditure instead of that payment.
  3. If we cannot be held liable for damages, or can only be held liable to a limited extent, the same will apply with respect to the personal liability for damages on the part of our salaried staff, waged employees, associates, representatives and vicarious agents.
 
 
 
     11. Licences in non-EU countries, norms and standards  
 
 
  1. Customers wishing to distribute the KERN products in non-EU countries must arrange themselves, at their own expense, for the necessary product licences that are required for an establishment in the country concerned.
  2. All KERN products comply with the relevant norms and standards of the European Union and the Federal Republic of Germany at the point of delivery. Customers outside the European Community import KERN products at their own technical risk. It is the purchaser’s responsibility to ensure that only those KERN products that comply with the relevant technical or other conditions applicable in the country of destination are placed on the market there.
 
 
 
     12. Place of fulfilment, place of jurisdiction, choice of law  
 
 
  1. If the customer is a trader, public sector legal entity or special fund under public law, the place of fulfilment is D-72336 Balingen and the exclusive place of jurisdiction will be the competent court for D-72336 Balingen. However, we are also entitled to sue the customer at the court of its place of domicile.
  2. For the rest, if the customer has moved its place of domicile or normal place of abode abroad after conclusion of the contract, or if the place of domicile or normal place of abode is not known when the court action is filed, the place of jurisdiction for legal actions against the customer will be the competent court for 72336 Balingen. The same will apply for court actions relating to cheques and bills of exchange.
  3. The exclusive governing law will be that of the Federal Republic of Germany, to the exclusion of the standard UN Convention on contracts for the international sale of goods (CISG).