(1)Unless expressly agreed otherwise, the Kernal Terms and Conditions of Sale apply to all contracts, deliveries and other services of Kernal Automation Co.,Ltd as per Section 15 of the German Stock Corporation Act (AktG) (hereinafter referred to as Kernal) vis-à-vis non-consumers as per Section 310 (1) of the German Civil Code (BGB).
(2) The Kernal Terms and Conditions of Sale apply exclusively; any terms and conditions of the purchaser to the contrary or deviating from the Kernal Terms and Conditions of Sale shall not be recognised unless Kernal has consented to their validity expressly in writing.
(3) Any agreements made between Kernal and the purchaser that deviate from the Kernal Terms and Conditions of Sale shall be recorded in a contract in writing.
(4) The Kernal Terms and Conditions of Sale also apply to all future business transactions with the purchaser.
(5) Within the scope of an ongoing business relationship with the purchaser, the Kernal Terms and Conditions of Sale shall form part of the contract even if no express reference is made to their inclusion in the individual case.
(6) Kernal reserves the right to adapt the General Terms and Conditions of Sale and Delivery at any time. The General Terms and Conditions of Sale and Delivery apply, particularly for future orders, in the current version at the time of the respective order.
(1) All quotes submitted by Kernal, irrespective of the form in which they are provided to the purchaser, are non-binding, unless otherwise agreed in writing, and apply subject to the ability of Kernal's suppliers to deliver.
(2) Statutory value-added tax is not included in the quoted price.
(3) If delivery is agreed to a destination other than any of Kernal's branches, the delivery obligation, unless otherwise agreed in writing, shall be limited to unloading on level ground at the recipient's kerbside.
(4) Customer orders shall be deemed accepted if they are confirmed in writing by Kernal or if they are delivered or, in the case of collection by the purchaser, made available immediately or within the agreed period.
(5) Any oral subsidiary agreements or undertakings by employees or vicarious agents of Kernalthat go beyond the written contract of sale shall be valid only if they have been confirmed by Kernal in writing.
(6) Kernal reserves the right to effect any amendments and/or extensions of the scope of delivery or performance that prove necessary in the execution of the respective order.
(7) The dates specified by Kernal in the offer or the order confirmation (“preferred dates”) do not constitute a binding delivery date commitment. The delivery date is determined by the correct and timely delivery to Kernal by Kernal’s manufacturer/supplier. If Kernal does not receive delivery itself, although a corresponding order was placed with a reliable manufacturer/supplier in good time, Kernal is released from its obligation to perform and may withdraw from the contract. Kernal is obliged to inform the customer without delay of the non-availability of the ordered goods after the order has been placed and to reimburse any counter-performance already made by the customer without delay.If after the conclusion of the contract Kernal becomes aware of any facts, in particular any default in payment with regard to previous deliveries, that suggest according to the due assessment of a prudent businessman that the purchase price claim is at risk due to the purchaser's inability to pay, Kernal shall be entitled, setting a reasonable time limit, to demand the purchaser to effect payment concurrently or provide corresponding security, at the purchaser's choice, and, in the case of refusal or after the expiry of the time limit, to rescind the contract, in which case any invoices for part deliveries that have already been effected shall become due immediately.
(8) Kernal reserves titles and copyrights to any figures, drawings, calculations and other documents received by the purchaser within the scope of the business relationship with Kernal.
(9) If after the conclusion of the contract Kernal becomes aware of any facts, in particular any default in payment with regard to previous deliveries, that suggest according to the due assessment of a prudent businessman that the purchase price claim is at risk due to the purchaser's inability to pay, Kernal shall be entitled, setting a reasonable time limit, to demand the purchaser to effect payment concurrently or provide corresponding security, at the purchaser's choice, and, in the case of refusal or after the expiry of the time limit, to rescind the contract, in which case any invoices for part deliveries that have already been effected shall become due immediately.
(10) Any services of Kernal that go beyond its duties as a seller, such as the provision of any advisory or planning services incumbent upon the purchaser vis-à-vis third parties, shall be agreed upon separately and shall be subject to a fee.
(11) None of the terms used by Kernal in connection with documents (catalogues, brochures, quotes, etc.) (in particular "warranted characteristics", "guaranteed performance", "guarantee", etc.) shall be deemed a guarantee as to quality as per Sections 443, 444, 639 of the German Civil Code. The statements made always constitute a description of the agreed quality and performance characteristics without constituting any guarantee as to quality as per the mentioned statutory provisions. Kernal is not liable for advertising statements made by third parties, particularly advertising messages of manufacturers and their vicarious agents.
(1) Unless otherwise agreed, the purchase price is due without any deductions immediately upon taking delivery of the goods.
(2) Should the purchaser have granted Kernal a SEPA basic mandate or a SEPA company mandate and should no other payment terms have been agreed, Kernal will collect the direct debit 10 days after the date of the invoice without any deductions. In the case of a SEPA basic mandate, the deadline for pre-notification may be shortened to 5 days prior to collection for an initial or single direct debit and to 2 days prior to collection for recurring debit debits and in the case of a SEPA company mandate to one day prior to collection. The purchaser gives an assurance that there will in each case be sufficient cover on the account.
(3) Any payments of the purchaser on account of performance shall be accepted only on the basis of a corresponding written agreement.
(4) Any credits for bills of exchange and cheques shall be granted subject to their receipt less the respective expenses with the value date being the date on which Kernal is able to dispose of the value.
(5) In the case of a default in payment, the statutory provisions shall apply. Any discounts agreed upon shall not be granted if the purchaser is in default in paying for previous deliveries.
(6) Irrespective of the term of any bills of exchange accepted and credited, any claims of Kernal shall become due immediately if the terms of payment are not complied with or facts become known that suggest that Kernal's purchase price claims are at risk due to the purchaser's inability to pay. In the latter case, Kernal shall be entitled to make any further deliveries dependent upon concurrent payment or the provision of corresponding security.
(7) If the purchaser defaults in payment or dishonours a bill of exchange after it has fallen due, Kernal shall be entitled, after issuing a reminder, to take back the goods, or if necessary enter the premises of the purchaser and take away the goods. Recovery of the goods in this way does not constitute a rescission of the contract. Moreover, Kernal may prohibit the removal of the delivered goods.
(8) In the cases specified in paragraphs (4) and (5) above, Kernal may revoke the collection authority as per Section 6 (6) and demand concurrent payment for any outstanding deliveries. However, the purchaser may avoid these legal consequences as well as the legal consequences specified in paragraph (5) above by providing security in the amount of the payment claim at risk.
(10) Any refusal to pay or retention of payment by the purchaser shall be excluded if the purchaser was aware of the defect or other reason for complaint at the time of conclusion of the contract. This shall also apply if the purchaser remained unaware thereof as a result of gross negligence, unless Kernal fraudulently concealed the defect or other reason for complaint or gave a guarantee as to the quality of the goods. In all other respects, any retention of payments on the ground of defects or other complaints shall only be permitted to a reasonable extent. In the case of a dispute, the amount shall be determined by an expert appointed by the Chamber of Industry and Commerce at the place of the registered office of the purchaser. The expert shall also decide on the allocation of the costs of his involvement according to his reasonable discretion.
(11) Any offset shall only be possible with regard to claims recognised by Kernal or recognised by a declaratory judgment.
(1)Packaging is charged extra.
(2) Kernaldoes not accept the return of packing material to the extent it commissions a suitable disposal company for the disposal pursuant to the German Packaging Ordinance (Verpackungsverordnung), as amended. In such cases, the purchaser shall be obliged to retain the packing material and hand it over to the disposal company. Insofar as Kernal agrees with the purchaser that the latter shall waive its right of return against the payment of a flat fee for disposal costs, the purchaser shall be obliged to hand the used packaging over to a recognised disposal company that warrants orderly disposal pursuant to the provisions of the German Packaging Ordinance.
(3) With regard to transport containers that are owned by Kernal and not returned to Kernal by the customer within a reasonable period after a corresponding request, Kernal shall be entitled to demand a flat fee for costs in the amount of EUR 10, waiving title to the transport container.
(1) The risk shall pass to the purchaser as soon as the goods have been provided at the agreed place of delivery and the purchaser has been notified accordingly by Kernal.
(2) If the dispatch is delayed at the request or through the fault of the purchaser, the goods shall be stored at the cost and risk of the purchaser. In such cases, the notification of the readiness for dispatch shall be equivalent to the dispatch.
(3) Partial deliveries are permissible.
(4) The delivery period is extended appropriately - also within a delay - in case of force majeure and any unforeseen hindrances which occur after the conclusion of the contract and for which Kernal is not responsible. This also applies if these circumstances occur at Kernal’s suppliers and their sub-suppliers. Kernal is to notify the purchaser without delay of the beginning and end of such hindrances. The purchaser may demand a statement from Kernal as to whether it intends to withdraw from the contract or deliver within a reasonable period of time. If Kernal does not make this statement within a reasonable period of time, the purchaser may withdraw from the contract. In this case, claims for damages are excluded. The above provisions apply accordingly to the purchaser if the aforementioned hindrances occur with the purchaser.
(5) Until proof is provided to the contrary, the following events affecting a party are presumed to meet the requirements for the assumption of force majeure under paragraph (4). In this case, the affected party only has to prove that one of the following conditions is actually fulfilled:
• War (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilisation;
• Civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy
• Currency and trade restrictions, embargo, sanctions
• Lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalisation;
• Plague, epidemic, natural disaster or extreme natural event;
• Explosion, fire, destruction of equipment, extended outage of transportation, telecommunications, information systems or power;
• General labour unrest such as boycotts, strikes and lockouts, slowdown strikes, occupation of factories and buildings.
(6) As regards timely delivery, Kernal shall be liable only for its own fault and the fault of its vicarious agents. Kernal shall not be liable for the fault of its upstream suppliers as they are not its vicarious agents. However, Kernal shall be obliged to assign any existing claims against upstream suppliers to the purchaser upon request.
(7) In the case of a delay in delivery, the purchaser shall be obliged to declare within a reasonable period upon the request of Kernal whether he continues to insist on delivery or rescinds the contract and/or claims damages in lieu of performance on the grounds of the delay.
(1) Kernal reserves title to the goods until full payment of the purchase price. In the case of goods obtained by the purchaser from Kernal within the scope of an ongoing business relationship, Kernal reserves title until all claims against the purchaser under the business relationship, including any claims arising in the future, also from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all of Kernal's claims have been included in a running account and the balance has been struck and recognised. If any liability of Kernal on the basis of a bill of exchange is created in connection with the payment of the purchase price by the purchaser, the reservation of title shall not expire until the bill of exchange is honoured by the purchaser as drawee. If the purchaser defaults in payment, Kernal shall be entitled to retrieve the goods after issuing a reminder, and the purchaser shall be obliged to surrender the goods.
(2) If the reserved goods are processed by the purchaser to create a new movable item, the processing shall be effected for Kernal without Kernal undertaking any obligation; title to the new item shall pass to Kernal. In the case of processing together with any goods not owned by Kernal, Kernal shall acquire co-ownership of the new item according to the proportion of the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or joined with any goods not owned by Kernal pursuant to Sections 947, 948 of the German Civil Code, Kernal shall become co-owner in accordance with the statutory provisions. If the purchaser acquires sole title by combining, mixing or joining, he hereby transfers the co-ownership to Kernal according to the proportion of the value of the reserved goods to the other goods at the time of combining, mixing or joining. In such cases, the purchaser shall store the item owned or co-owned by Kernal, which shall also be deemed reserved goods as per the above provisions, free of charge.
(3) If reserved goods are sold alone or together with goods not owned by Kernal, the purchaser hereby, i.e. at the time of conclusion of the contract, assigns any and all claims arising from the resale in the value of the reserved goods with all ancillary rights and ranking in priority to the rest; Kernal hereby accepts the assignment. The value of the reserved goods shall be the invoice amount claimed by Kernal, which, however, shall not be considered if there is a conflict with third-party rights. If the resold reserved goods are co-owned by Kernal, the assignment of the claims shall extend to the amount that corresponds to the value of Kernal's share in the coownership.
(4) If the purchaser installs reserved goods into the real property, ship, ship under construction or aircraft of any third party as essential components, the purchaser hereby assigns all assignable claims to remuneration in the value of the reserved goods with all ancillary rights, including a right to the granting of a security mortgage, ranking in priority to the rest, that arise against said third party or any other party concerned; Kernal hereby accepts the assignment. The provisions of the above paragraph (3) sentences 2 and 3 shall apply accordingly.
(5) The purchaser shall be entitled and authorised to resell, use or install the reserved goods only within the ordinary due course of business and only subject to the proviso that the claims as per paragraphs (3) and (4) above actually pass to Kernal. The purchaser shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or transfer them by way of security. The purchaser shall be permitted to make an assignment by way of non-recourse factoring only subject to the condition that Kernal is notified thereof including a disclosure of the factoring bank and the accounts of the purchaser maintained there and that the factoring proceeds exceed the value of Kernal's secured claim. Kernal's claim shall become due immediately as soon as the factoring proceeds have been credited.
(6) Kernal hereby authorises the purchaser, subject to countermand, to collect the claims assigned pursuant to paragraphs (3) to (5) above. Kernal shall not make use of its own collection authority as long as the purchaser fulfils his payment obligations, also vis-à-vis third parties. At the request of Kernal, the purchaser shall name the debtors of the assigned claims and notify them of the assignment; Kernal shall also be authorised to notify debtors of the assignment itself.
(7) The purchaser shall immediately inform Kernal of any execution measures by third parties against the reserved goods or the assigned claims, handing over the documents required to raise an objection.
(8) The rights to resell, use or install the reserved goods or the authority to collect the assigned claims shall expire upon the cessation of payments and/or the petition for the opening of insolvency proceedings; in the case of a cheque or bill protest, the authority to collect shall also expire. This shall not apply to the rights of the insolvency administrator.
(9)The value of the reserved goods shall be based on the invoice amount (invoice value) claimed by Kernal from the purchaser.
(1) The purchaser is obliged to examine the goods received for any deviations in terms of quality or quantity immediately; in all other respects, the provisions of Section 377 of the German Commercial Code (HGB) shall remain unaffected.
(2) In the case of an intended integration of the goods, the purchaser is obliged under Section 377 HGB to examine the goods, at the time they are received, for the properties required for integration purposes and to notify Kernal of any defects immediately and in text form.
(3) If, in the case of an integration or installation of the goods, the purchaser fails to examine the goods for the external and internal properties required for the said purpose, prior to their integration or mounting, he will be acting in gross negligence within the meaning of Sections 439
(3) and 442 (1) BGB. In this case, the rights of the purchaser in respect of defects related to the said properties will only be taken into consideration if the defects in question were fraudulently concealed or a warranty for the properties of the goods has been assumed.
(4) If the purchaser discovers defects in the goods, he may not dispose of them, i.e. the goods may not be divided, resold or processed, until an agreement has been reached on the handling of the complaint or proceedings for the preservation of evidence have been conducted by an expert commissioned by the Chamber of Industry and Commerce at the place of the registered office of the purchaser.
(5) The purchaser shall be obliged to make the faulty goods or samples thereof available to Kernal for the purpose of examining the complaint. The warranty shall be cancelled in the case of a culpable refusal.
(6) In the case of justified complaints, Kernal shall be entitled to determine the kind of subsequent performance (substitute delivery, subsequent improvement) taking account of the type of defect and the legitimate interests of the purchaser.
(7) If the purchaser has integrated in or mounted on another object goods which are defective at the time of passage of risk in accordance with their type and their intended use, he may, under Section 439 (3) BGB, require reimbursement from the seller for the expense incurred through the removal of the defective goods and the integration or mounting of the rectified or delivered goods ("Removal and installation costs") only as stipulated in the following provisions: The only removal and installation costs which are necessary within the meaning of Section 439 (3) BGB are those which concern the removal and installation or the mounting of identical products, those which arose on the basis of conditions customary for the market and those of which the purchaser gives the seller evidence by presenting suitable supporting documents at least in text form. A right of the purchaser to demand advance payment for removal and installation costs is excluded. The purchaser is also not permitted to set off, unilaterally and without the seller's consent, claims for reimbursement of removal and installation costs against the seller's demands for payment of the purchase price or other claims for payment. Purchaser's demands which go beyond the necessary removal and installation costs, in particular costs for consequential damage or loss due to defects, for example lost profit including imputed profit markups, operational downtime costs or additional costs for the procurement of replacements, are not deemed to be removal and installation costs and are therefore not eligible for compensation in terms of subsequent performance under Section 439 (3) BGB. If the expense asserted by the purchaser for subsequent performance within the meaning of Section 439 (3) BGB in an individual case is disproportionate, in particular in relation to the purchase price of the goods in flawless condition and with due consideration for the significance of breach of contract, the seller is entitled to refuse to reimburse such expense.
(8) The purchaser shall inform Kernal immediately of any case of warranty experienced by any consumer.
(9) Insofar as Kernal has provided the plans/programming for the installation of complex light, control and network systems (e.g. EIB), the purchaser shall be obliged in his capacity as installer to adhere to such plans and effect any deviations, including minor deviations – both with regard to the installation and later repairs –, only with the consent of Kernal. Kernal shall not accept any claims for compensation for damage – of whatever kind – attributable to any arbitrary deviation from the specifications by the purchaser.
(10) Any claims for material defects shall become statute-barred after 12 months unless the statutory provisions provide for other limitation periods. This does not apply in cases where the law prescribes longer periods under BGB Section 438 (1) no. 2 (buildings and objects used for buildings), Section 438 (3) (fraudulent concealment), Section 479 (1) (recourse claims) and Section 634a (1) no. 2 (construction defects).
(11) Any claims for damages or compensation for futile expenses for material defects shall be subject to Section 9 (Limitation of Liability).
(1) Kernal may rescind the contract of sale for cause at any time up to the handover of the purchased goods to the purchaser.
(2) If the purchaser is responsible for the cause, he shall only be entitled to remuneration of the necessary expenses made up to receipt of the notice of rescission.
(3) If the purchaser is not responsible for the cause, he may only claim from Kernal the reasonable costs of obtaining the ordered goods from another source (known as purchase of goods in replacement). Any further claims of the purchaser for damages shall be excluded.
(4) A cause as per paragraphs (1) to (3) above exists in particular if Kernal ceases to be interested in providing the contractual performance as a result of sovereign decisions, an insolvency petition is filed at the purchaser's end or the requirements for such a petition are fulfilled.
(1) Kernals hall be liable pursuant to the statutory provisions if the purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence by its representatives or vicarious agents. Moreover, Kernal shall be liable for any culpable violations of material contractual obligations pursuant to the statutory provisions. In this regard, material contractual obligations are obligations the fulfilment of which makes proper performance of the contract possible in the first place and compliance with which may be regularly relied upon by the contractual partner. If Kernal is not charged with intent or gross negligence, the liability for damages shall be limited to the foreseeable damage typically incurred in the case of contracts of this kind. This does not involve a shift of the burden of proof to the detriment of the purchaser.
(2) The liability for culpable injury to life, limb or health shall remain unaffected. Liability under the German Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected.
(3) Any claims for damages in excess thereof, for whatever legal reason, shall be excluded. This shall also apply if the purchaser claims compensation for futile expenses instead of the claim for damages in lieu of performance.
(4) The liability for gross fault as well as for claims for damages based on injury to life, limb or health shall be subject to the statute of limitations.
(5) In all other respects, any claims for damages shall be subject to the limitation periods of Section 7 paragraph (10).
(1) The purchaser waives his right to object to Kernal's specification of the claim to be offset in the case of several claims.
(1) The purchaser agrees that Kernal may store, process and – insofar as customary and/or required for the fulfilment and handling of the business relationship or for internal analyses – transmit to other Kernal companies or third parties personal data of the purchaser to the extent permitted by law. Moreover, the data will be used for the maintenance of customer relations unless the purchaser objects pursuant to Art. 21 GDPR. Insofar as is necessary and permitted by law, contract data will be transmitted to third parties, in particular to trade credit insurance companies, for the purpose of verifying the credit standing of the purchaser; the results may also be made available to other third parties. Within the scope of order fulfilment, which includes products of selective distribution systems of individual manufacturers, it is regularly required to process personal data (name, address, delivery details) and to transmit it to the manufacturer or a third party contracted by the latter.
(1) The use of software and related digital products and content (“application”) is normally subject to the terms and conditions of an end user licence agreement between the purchaser and the publisher or other licensor of the application (an “EULA”). The publisher or the other licensor has the right to enforce the EULA against the purchaser. If the purchaser decides not to accept the EULA for an application, the purchaser is not permitted to use that application. This contract does not amend or replace any licence or other contract between the purchaser and the publisher of an application. Kernal is not a party to the EULA for an application (except where Kernal is the publisher of the application). If the purchaser receives an application that does not have an EULA with it, the publisher only grants the purchaser a limited licence to download (if applicable), access or use the application for personal purposes and reserves all other rights. The applications are protected by copyright and other laws and treaties protecting intellectual property. The rights to the applications, copyright and other intellectual property rights remain with Kernal, the publishers or other licensors. Subject to deviating individual contractual provisions, the applications are licensed and not sold.
(1) The deliveries of goods and the provision of services (performance of contract) shall be subject to the provision that the performance is not hindered by any obstacles based on national or international regulations, in particular export control regulations as well as embargos or other sanctions. The purchaser undertakes to furnish all information and documents required for the export, shipment, import. Any delays due to export inspections or permit procedures shall render any deadlines and delivery periods null and void. If any required permits are not granted, the contract shall be deemed not concluded with regard to the parts concerned; any claims for damages in this regard and on the basis of the above failure to comply with time limits shall be excluded.
(1) In general and for the duration of the business relationship with Kernal, the purchaser guarantees compliance with all applicable laws, rules and regulations, including (but not limited to) all anti-corruption laws and regulations and compliance with all applicable regulations protecting free competition. The purchaser has not committed any prohibited acts, either directly or indirectly, in connection with the business relationship concluded with Kernal and will not do so in the future. Prohibited actions include promising, offering or giving, or soliciting or accepting an improper advantage or benefit to influence actions in an improper manner.
(2) Kernal and its representatives have the right to inspect, audit and make copies of the books and records of the purchaser in cases of justified doubt that the purchaser has violated its obligations under Section 13, insofar as they relate to the execution of the business relationship with Kernal. Inspection shall take place to a reasonable extent, at the usual location and during normal business hours.
(3) If the purchaser violates the obligation in Section 13, Kernal is entitled to terminate this contract in writing without notice and without further obligations or liability to the purchaser. The customer will fully indemnify and hold Kernal harmless from all damages, losses, withholding of payments, claims and demands of third parties arising from or in connection with the termination.
(1) If the purchaser is a merchant, legal person under public law or special fund under public law, the place of the registered office of the Kernal company concerned shall be the place of jurisdiction; however, the Kernal company concerned shall be entitled to sue the purchaser at the place of his registered office as well.
(2) Unless otherwise provided in the order confirmation, the place of performance shall be the place of the registered office of the respective Kernal company or its branches.
(3) The relations between the parties shall be governed exclusively by the laws applicable in the Federal Republic of Germany, excluding the provisions of the UN Sales Convention.
Should individual provisions of the Kernal Terms and Conditions of Sale be or become invalid or impracticable, the other provisions shall remain valid. The parties undertake to replace the invalid or impracticable provision by a provision that corresponds as closely as possible to the invalid or impracticable provision in every respect from the start of the invalidity or impracticability. The Kernal Terms and Conditions of Sale describe the English translation of the latest German version (Allgemeine Verkaufs- und Lieferbedingungen der Kernal Automation GmbH ). In case of deviations or ambiguity, the German version shall prevail.
Effective as of October 2023
Kernal Automation Co., Ltd
Poststr.2, 95028, Hof, Bayern, Germany
Email: rihua@kernal-automation.de
Whatsapp:015122812500
Wechat:hazelyang168