General Terms and Conditions

I. General

For all negotiations and orders given to us the following terms are valid. Any deviations thereof shall be made in writing. This requirement of form can only be dispended by written declaration. In case that the contracting parties conclude similar agreements again, the general business and delivery conditions apply, even if their validity was not expressly agreed on subsequent occassions.

II . Offer

Our offers shall be unbinding until the written confirmation. Measurements, weight and performance specifications as well as pictures and drawings are approximate and not binding. Subject to prior sale.

III . Scope of Delivery

For the scope of delivery our written order confirmation is authoriative, if our offer is only valid for a limited term and the goods have to be accepted by a certain date, the tender applies unless an order confirmation. Assurances of characteristics, subcontracts and changes need our written confirmation to become effective. The right to modify the goods with regard to design and form is reserved insofar as the goods are not substantially altered thereby and as the modifications are reasonable to the customer.

IV. Price and Payment

1. Unless otherwise agreed, all prices shall be made in Euro and exworks excluding packaging, freight and insurance. The legal rate of VAT in force at the time must be added to the quoted price. If the delivery takes place more than four months after the conclusion of the contract, the prices applicable at the date of dispatch will be charged.

2. Unless expressly agreed upon otherwise, payments shall be made in cash without any deductions at the suppliers domicile promptly after reception of the invoice. If a discount is agreed on, it will be granted only if the payment has been credited to our account within the agreed period. The receipt of payment date shall be the day on which the amount is in our possession or rather the date of confirmation of the payment by our bank company. For any delay of payment interests according to the respective bank rates for overdraft facilities shall be charged.

3.The acceptance of any bills of exchange or cheques is effected on account of payment only; and we reserve the right of acceptance in each individual case. Bills and cheques count as payment only after they have been cashed.The buyer shall pay the expenses caused thereby.

4. When paying by federal reserved bankable bill of exchange, that has to be paid lates within 3 months after invoice date and has to be deposited immediately after reception of invoice, the charges for draft are to be met by the customer.

5. Payments are always taken into account without considenion for other orders of the debtor first at interest and the expense and afterwards the oldest payable account. Agreed discounts can only be deducted if all previous balances have been cleared.

6. Any delay of payments or settling of accounts due to eventual disputed or which are not final and absolute, are not admissable.

V. Delivery Time

1. The delivery period starts with the dispatch of the order confirmation, however not before the ordering party has obtained all the ruired data for the manufacture of the item of delivery and not before the receipt of any agreed payment.

2. The delivery period is complied with, if by the expiry of the period for delivery readiness for dispatch has been notified of the delivery item has left the factory.

3. The delivery period is extended in the chase of action in the context of industrial disputes, in particular strikes and lockouts as well as the occurence of unforeseeable obstacles, which are beyond our control and that affect the completion of the delivery item. We shall not be responsible for the above mentioned circumstances, even if they arise during an already excisting delay.

4. If the delivery time is exceeded through our fault, the purchaser shall be entitled to exercise the legal and contractual rights, after setting a second deadline of 14 days in writing.

5. The compliance of the delivery period assumes the proper fulfilment of the contract duties of the customer.

VI. Transfer of Risks and Acceptance

1. The risks shall be pass to the customer no later than when the goods are dispatched, also in the event of freight-free delivery or free assembly respectively commissioning. Where despatch is delayed due to circumstances the purchaser is responsible for, the risk shall be transfered to the pruchaser on the day of readiness for despatch; We shall however take out the insurance policies requested by the purchaser at the expense of the latter.

2. Items supplied are to be accepted by the customer even if there is evidence of minor faults, regardless of the rights arising from section VII.

3. Partial deliveries are permissible.

VII . Title Retention

1. We retain title in the delivery item until the orderer has paid all receivables which have arisen from the business relationship.

2. As long as the retention of title exists, the orderer is only allowed to disponse of the delivery item in normal business transactions. The orderer may neither give away or pledge the object of delivery nor offer it as security.

3.If the delivery item is being pledged, confiscated or affected by third party regulations during the retention of title, the orderer has to inform us immediately and has to take appropriate actions to repeal this measure promptly.

4. In the case of a sale of the delivery item or other means occured disposal the orderer assigns from any ensuing liabilities to us. It is to be understood as agreed upon by signing the contract of sale, that the price claim resulting from this selling transaction including invoiced VAT fully passes to our possession. In that manner all rights pass to our possession in advance, that occure for the orderer in case that the delivery item is tightly related that it is an essential component of another thing or in the case that the delivery item will be damaged or deffective or goes down.

5. If the purchaser acts in any way contrary to the terms of the contract, stops his payments or legal settlements or bankruptcy proocecedings are opened against its assts, we shall be entitled to withdraw from the entire contract, also insofar are bills of exchange with a later maturity date pending. If the total residual claim is not paid immediately, the customers right to use the goods will expire and we will be entitled to demand the immediate surrender of the reserved goods to the exclusion of any right of retention if possible according § 11 no. 2 b) General Terms and Conditions Act. This also applies in the case that the buyer has acquired ownership of the delivery item by assembling it. In this case the buyer renounces his aquired property and commits itself to assign the item to us. All costs inccurred for the retrieval of the item shall be borne by the orderer. We are entitled to utilize the repossessed object sold in the best possible way by selling it through private contract. After deduction of the costs, the revenue shall be offset against the customers´dept with any credit remaining credited to the customer. In case of withdrawal from the contract as a result of non-compliance, we are able to require an amount levied on the use or a replacement for damage, if no other offset is made.

VIII . Guarantee

We shall be liable with the exclusion of further claims regarding deficiens of the delivery as follows:

1. According to our choice, all those parts are to be repaired or new parts are to be delivered due to circumstances that arose before the transfer of risk - especially due to defects in construction, raw materials or defective completion - rendering the delivery unusable or turned out that they are not insignificantly impaired in their usability. Any defect ,must be communicated to us in writing without delay. Replaced parts will become our property. The purchaser reserves the right to reduce the payment or, at his discretion, to demand cancellation of the contract in the case of failure to rectify the defect or to deliver a replacement.

2. The guarantee shall end following the expiry of 12 months; for seasonal equipment however no sooner than after expiry of the first operation period. If dispatch or first operation are delayed through no fault or our own, our liability shall expire no later than 12 months after passage of risk.

3. In the case of substantial quantities of products not made in house, our liability will be restricted to warranty rights which we have against the vender of the foreign products.

4. The right of the ordering party to enforce claims for defects expires in all cases from the point of time of the complaint made in good time within 6 months, at the earliest however, at the expiry of the warranty period.

5. We accept no guarantee for damages incurred for the following reasons: unsuitable or improper utilisation, faulty installation or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, excessive workload, use of inappropriate working and substitude materials, incorrect storage, chemical, electrochemical or electrical influences, unless the responsibility of us.

6. In order for the supplier to undertake the repair of replacements which appear to be necessary at his discretion the ordering party shall notify us and allows sufficient time and opportunity otherwise we are released from the liability for defects. Only in urgent cases such as endangerments of the operating safety and to ward off unreasonable serious damages - where we must be informed immediately- will the buyer have the right to rectify the fault himself or have it rectified by third parties and to demand reimbursement of the necessary costs.

7. We carry the direct costs created by the repair or replacement delivery - insofar that the complaint has proven to be justified - the costs for the replacement part including the shipment as well as the appropriate costs for removal and instalation. Any other costs shall be at the purchasers´ expense.

8. Unqualified alterations or maintenance work executed by the customer or any third party without our prior approval, however, will exclude all liability for consequences resulting therefrom.

9. Further claims on parts of the customer, in particular any claim to a compensation of damages not originating from the delivered object are excluded, insofar as this is permissible by law.

IX. Liability

1. If the delivery item cannot be used as stipulated in the contract for reasons attributable to the purchaser as a result of negligent or incorrect execution of proposals and consulting that took place prior to the contract conclusion or due to a violation of other secondary obligations - in particular relating to the operations and maintenance manual for the delivery item, the regulations in sections VIII and IX2 shall apply accordingly with the exclusion of further claims.

2. Where there has been no damage to the delivery item itself we will only accept liability - for whatever legal reaons in the event of malicious intent, gross negligence of the proprietor/executive bodies or management staff, in the event of culpable damage to life, limb, health, in the event of defects which he has fraudulently concealed or the obsence of which he has guaranteed, and in the event of defects in the delivery item, to the extend that there is liability for personal injury or damage to privately used items under the Product Liability Act. In the case of a culpable violation of substantial contractual obligations, the supplier shall also be liable in view of gross neglience on the part of executive employees and in view of minor negligence in the latter case limited to the typical contractual and reasonably foreseeable damage. Further claims are excluded.

X. Limitation

All claims by the client on whatever legal grounds are subject to prescription after 12 months. The legal periods apply for deliberate or fraudulent behaviour as well as for claims in accordance with the Product Liability Act and for claims for withdrawal of the business person.

XI. Place of Jurisdiction

For all conflicts resulting from this contract, if the customer is a qualified merchant, a corporate body under public law or a public law entiry with special public funds, claims are to be filed at the court which is responsible for the main office. We are also entitled to pursue legal action at any other admissable court of law. For claims asseted in dunning procedure Dillingen/Donau is the appointed place of jurisdiction.

XII .Legal Force

German law is solely applicable to contractual relationships and agreements.

XIII . Field-Testing Conditions

1. Requirements

Requirement for the permition of a field-testing application is the legal conclusion of a sales contract according to the regulations of our companies` general terms and conditions. Deliveries for field-testing conditions are said to be agreed, if we expressly confirm the delivery for field-testing in written.

2. Testing Period

The machine must be tested within 1 week after reception at the agreed place, unless otherwise agreements have been made with us in writing. The acceptance of the working method of the equipment must be declared within this period. In case that no time-limit has been agreed for the testing, it may extend for one day maximum. We are entitled to control the field-testing by company workers or other representatives.

3. Take-Over

If the machine affords the anticipated functions and results in normal weather and operation conditions, it shall be overtaken by the customer according to the sales contract. Equipment is also deemed to be taken over when it has been used for more than one day. If the testing ist not to the orderers satisfaction, the orderer is obliged to inform us immediately and to give us the opportunity to execute a new testing in the presence of a company worker or other representative within a reasonable time.

4. Return

The buyer is only entitled to return the machine to us, in case that it has not worked satisfactory as explained in number 3, during the testing in the presence of a company worker or other representative. In this case the machine has to be delivered to an adress given from us in a cleaned state, free of charge for the supplier and at the customers risk. In this case the supplier and the orderer have the right to withdraw from the contract.

Safety Notes and Marking

Attention: According to § 31 and § 23 StVZO the driver and owner is responsible for the use and operation of attached and assembled devices.

I. Safety Notes

1. Machines with a transport width of more than 3 metres may not be transported on public roads without a certificate of exemption, unless in a longitudial direction on suitable transport trailers.

2. When installing attachments on the front and rear lift arms, do not exceed the permissible total weight, the maximum allowable axle loads and the tyre carrying capacities of the tractor. Always check that the necessary front axle load of the tractor (20 % of the Tractors`net weight) is maintained. The driver is responsible for the fulfilling of these requirements.

3. The front edge of a front mounted implement must not be more than 3.5 metres from the tractor steering wheel centre. If this is exceeded, additional measures are necessary which ensure the safe transportation on public roads for example an escorting person as guide.

4. For attached agricultural devices with a permissible maximum weight of more than 3 tons, an operating license for driving on public roads is necessary.

II . Identifying and Lighting Equipment

1. If the vehicle shows traffic dangering parts, as far as rising above of parts over the vehicles contour, warning signs are necessary.This also applies for traffic dangering parts as cutters, tines, discs...

2. If the mounted implement protrudes more than 1 metre beyond the rear lights of the tractor a warning sign is necessary. in darkness or if required because of the weather conditions, at least one tail light and reflector have to be attached.

3. If the mounted implement protrudes more than 40 cm laterally beyond the limitation or rather rear lamp, a warning sign in front and rear is necessary. In darkness or if required because of the weather conditions, additional limitations and rear lamps have to be attached.

4. Accessory equipments also have to have lighting equipment, if the lighting system of the tractor is covered by the attached device.

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Contact Data

KERNER
Maschinenbau GmbH
Gewerbestraße 3
D-89344 Aislingen

Tel. +49 (0) 907 5 95 21-0
Fax +49 (0) 907 5 95 21-20
info@kerner-maschinenbau.de