General terms and conditions for repair and reconditioning work by Kern GmbH

1st area of application

These General Terms and Conditions apply to all inspection, modification, repair and reconditioning work (hereinafter referred to as "order"), unless otherwise expressly agreed or confirmed in writing by KERN. Deviating terms and conditions of customers are not applicable, regardless of whether they have been expressly rejected in individual cases or not.

2. scope of services

The scope of services to be provided shall be agreed in writing in a separate contract, to which these General Terms and Conditions shall then apply.

3. prices

3.1 If the parties agree on a fixed price for the order, this price is based on the scope of the order known at the time of the agreement. The price is binding and covers all costs and expenses associated with the execution of the order, subject to clause
3.3.
3.2 If the parties do not agree on a fixed price, KERN is entitled to charge the executed order at the current KERN prices. KERN shall also be reimbursed by the customer for all other expenses (e.g. packaging costs, transport costs) actually incurred. Unless expressly agreed otherwise, submitted cost estimates are non-binding.
3.3 The prices according to clauses 3.1 and 3.2 are exclusive of transport and insurance costs, value added tax and, unless otherwise agreed, exclusive of other fees and charges.

4. terms of payment

4.1 Unless expressly agreed otherwise, all our invoices are due for payment 10 days from the invoice date without any deduction.
4.2 The customer is only entitled to withhold payments due to or offset against counterclaims if these have been legally established by a court or are undisputed.

5. subcontracting and procurement of spare parts

KERN is entitled to subcontract the order in whole or in part. Unless otherwise agreed with the customer, KERN is entitled to freely select the spare parts as well as their suppliers. Subcontracting has no influence on the qualitative execution of the order.

6. technical documentation and repair requirements

The customer shall inform KERN of the relevant operating conditions in its inquiry and hand over the technical documentation necessary for the execution of the order. This documentation shall remain the property of the customer and shall be used by KERN and its subcontractors exclusively for the fulfillment of the order. If the customer does not specify a requirement for the result of the order, the KERN definition shall apply.

7. transportation and insurance for repairs at the KERN factory or subcontractors

7.1 Unless otherwise agreed in writing, any delivery and removal of the object of the order carried out at the request of the customer - including any packaging and loading - shall be carried out at the customer's expense, otherwise the object of the order shall be delivered to KERN by the customer at the customer's expense and collected again by the customer after the order has been carried out at KERN.
7.2 The customer bears the transport risk.
7.3 At the customer's request, the outward and, if applicable, the return transport shall be insured against insurable transport risks, e.g. theft, breakage, fire, at the customer's expense.
7.4 There is no insurance cover during the repair time at the KERN plant or the subcontractors. The customer must ensure that the existing insurance cover for the object of the order is maintained, e.g. with regard to fire, tap water, storm and machine breakage insurance. Insurance cover for these risks can only be obtained at the express request and expense of the customer.
7.5 If the customer is in default of acceptance, KERN may charge storage fees for storage at its plant. The object of the order may also be stored elsewhere at KERN's discretion. The costs and risk of storage shall be borne by the customer.

8. due date of performance

8.1 A performance time is only binding if it has been expressly agreed in writing. 8.2 KERN is entitled to exceed any agreed performance time in one of the following cases: a) subsequently agreed extensions of the scope of the order, or b) reasons for relief listed under clause 12, or c) in the event of a delay in the execution of the order for which the customer is responsible.

9. retention of title, extended lien

9.1 KERN retains ownership of all accessories, spare parts and other parts used until all payments from the order have been received. Further security agreements can be made.
9.2 KERN is entitled to a lien on the customer's object of the order which has come into its possession as a result of the order due to its claims arising from the order. The right of lien can also be asserted for claims from previously performed work, spare parts deliveries and other services, insofar as they are related to the subject matter of the order. The right of lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or have been legally established by a court of law.

10. claims for defects

10.1 After completion of the order, KERN shall be liable for defects in the order to the exclusion of all other claims of the customer, notwithstanding No. 5 and Section 11, in such a way that it must remedy the defects. The customer must notify KERN immediately in writing of any defects found.
10.2 KERN shall not be liable if the defect is insignificant for the interests of the customer or is based on a circumstance attributable to the customer. This applies in particular to parts provided by the customer and to defects resulting from transport damage, incorrect maintenance by the customer, incorrect assembly, installation or storage and improper operation.
10.3 KERN shall not be liable for the consequences of any modifications or repair work carried out improperly by the customer or third parties without the prior consent of KERN. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case KERN must be notified immediately, or if KERN has allowed a reasonable deadline set for it to remedy the defect to expire, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from KERN.
10.4 Of the direct costs incurred by the remedy of defects, KERN shall bear the costs of the replacement part including shipping - insofar as the complaint proves to be justified. KERN shall also bear the costs of removal and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travel costs, provided that this does not result in a disproportionate burden on KERN in relation to the order value.
10.5 If KERN - taking into account the statutory exceptions - allows a reasonable deadline set for the rectification of defects to expire without result, the customer shall be entitled to a reduction in price within the framework of the statutory provisions. The customer shall also have the right to a reduction in price in other cases of failure to rectify defects. The customer may only withdraw from the contract if the rectification of defects is demonstrably of no interest to the customer despite the reduction.
10.6 Claims for liability for defects shall lapse after a period of 12 months, beginning 7 working days after dispatch or - in the case of self-collection by the customer - after notification of readiness for transport.

11 Liability of KERN, exclusion of liability

11.1 If parts of the object of the order are damaged through the fault of KERN, KERN shall, at its discretion, repair or replace them at its own expense. The obligation to pay compensation shall be limited to the contractually agreed order price. Otherwise, Section 11.3 shall apply accordingly.
11.2 If, through the fault of KERN, the object of the order cannot be used by the customer in accordance with the contract as a result of omitted or faulty execution of suggestions and advice made before or after conclusion of the contract as well as other contractual ancillary obligations - in particular instructions for operation and maintenance of the object of the order - the provisions of Sections 10 and 11.1 and 11.3 shall apply accordingly, excluding further claims by the customer.
11.3 For further damage that has not occurred to the subject matter of the order itself, KERN shall only be liable - for whatever legal reasons

a) in the event of intent,
b) in the event of gross negligence on the part of its organs or executive employees,
c) in the event of culpable injury to life, body and health, d) in the event of culpable breach of essential contractual obligations,
e) in the event of defects which KERN has fraudulently concealed or the presence of which KERN has guaranteed,
f) in the event of defects in the delivery item for which liability is assumed under the Product Liability Act for personal injury or property damage to privately used items. However, KERN shall only be liable for gross negligence of non-executive employees if they violate essential contractual obligations. In this case and in cases of liability for slight negligence in the event of a breach of essential contractual obligations, liability shall be limited to the reasonably foreseeable direct damage typical for the contract. Further claims of the customer, in particular a claim for compensation for damages that have not occurred to the object of performance itself, are excluded. This also applies to damages based on the infringement of property rights and for unauthorized actions. Liability for damages resulting from business interruption and/or loss of profit is excluded, except in the case of willful misconduct. In addition, the customer shall indemnify KERN and its agents against third-party claims asserted in connection with the order. This shall apply mutatis mutandis to cases in which KERN is liable to recourse.

12. force majeure

If the provision of the contractual performance is delayed due to measures within the framework of labor disputes, in particular strikes and lockouts as well as the occurrence of circumstances for which KERN is not responsible, the performance period shall be extended appropriately in accordance with clause 8, insofar as such obstacles can be proven to have a considerable influence on the completion of the contractual performance; this shall also apply if such circumstances occur after KERN is in default with the provision of the contractual performance.

13 Applicable law and dispute resolution / place of performance

13.1 All legal relationships between KERN and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relationship between domestic parties.
13.2 The place of jurisdiction is Burladingen. However, KERN is entitled to bring an action at the customer's headquarters.
13.3 Place of performance is Burladingen.
13.4 Place of payment is Burladingen.