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KOSTAL Kontakt Systeme GmbH

General Terms and Conditions of Sale

1. Applicable Terms and Conditions

1. These General Terms and Conditions of Sale form an integral part of all contractual relations between the Parties, namely Customer and KOSTAL Kontakt Systeme GmbH (Supplier). Any written agreements that deviate from these Terms and Conditions shall take priority and shall replace in whole or in part, or supplement, the following Terms and Conditions.

2. Any terms and conditions of Customer that are not expressly accepted shall not form part of any contract, even if they have not been specifically rejected, or if supply orders are executed with knowledge of deviating terms and conditions.

3. Any amendment, addition, waiver, acknowledgment, assignment, setoff, offsetting, representation, objection, withdrawal or notice of termination that has adverse impacts for Supplier shall not be legally effective unless made in writing. A unilateral legal act (e.g. notice of termination) requires only the signature of the respectively entitled person under the document, in his or her own hand. Otherwise, the signatures of both Parties are necessary in order to conform to the requirement of written form.

2. Confidentiality

   1. The Parties shall treat as business secrets all non-obvious commercial and technical information that becomes known to them through the business relationship.

   2. Documents made available to Customer, in particular drawings, models, templates, samples and similar items, may not be provided to unauthorized third parties. They shall remain the property of Supplier. Copying is permissible only to the extent that it is required for operational purposes and accords with copyright regulations. At the request of Supplier, all documents, items and copies thereof shall be surrendered or, if necessary, destroyed.

   3. Items that are manufactured according to specifications, drawings or models, or with the aid of tools and production facilities paid by Supplier may not be offered, given as samples or otherwise supplied to third parties without the consent of Supplier.

   4. Supplier reserves the right to file applications for intellectual property rights, and to exploit rights to use its items and information.

   5. Customer may not advertise its business connection to Supplier without the written consent of the latter.

3. Orders, Call-offs

   1. Orders, call-offs and any changes or additions thereto shall be sent in the form of written text by means of remote data transfer or on machine-readable data storage media. Verbal agreements require written confirmation to obtain effect.

   2. Supply agreements shall become binding if Supplier does not object to the orders or call-offs within two weeks after receipt. Customer is bound to its orders for the aforesaid durations unless they are finally rejected by Supplier at an earlier date.

   3. If changes are made to the ordered quantity, Customer shall also inform Supplier’s disponent without delay, in addition to remote data transmission. If Customer requests a change in the design, execution or quantity of the item to be supplied, the effects of such change, in particular any additional or lower costs, and the delivery dates, shall be the subject of mutual agreement. If quantities are increased, reasonable consideration shall be given to the dispositional requirements of Supplier.

   4. Supplier reserves the right to refuse design and execution changes that are requested, particularly when the items to be supplied are not designed solely by order of Customer and made with tools paid by Customer.

   5. If there is good cause, Supplier has the right to make supply dependent on the opening of a documentary letter of credit, cash in advance, the presentation of import licenses or the provision of suitable collateral (such as guaranty, etc.).

4. Delivery Dates, Deadlines, Place of Performance, Passing of Risk

   1. Supplier shall comply to the best of his ability with agreed dates and deadlines.

   2. The criterion for timely performance shall be the date on which transfer of the supplied goods to the transport company at the place of performance is effected. The risk passes to Customer when said transfer is effected.

   3. The place of performance is the outgoing goods department of Supplier.

5. Packing, Dispatch and Freight Costs

   1. The goods to be supplied shall be packed in the proper and customary manner. Contacts are supplied by default in returnable packing that must be returned to the Supplier at no cost to the latter.

   2. The provisions in INCOTERMS 2000 shall apply accordingly.

6. Acceptance, Deviations in Quantity, Compliance with Requirements

   1. Customer is bound to its framework contracts and orders. His release for production shall be extended automatically by one month if a change is not notified in timely manner.
      Quantities called off in the previous week and during the first eight weeks are binding.

   2. Supplier is permitted to deviate from the ordered quantity in order to deliver in full packaging units. Customer is not permitted on the basis of excess or short deliveries either to claim costs or to refuse the delivery in whole or in part. Part-deliveries are permissible if they are reasonable for Customer.

   3. Products made by Supplier using production facilities that are co-owned or solely owned by a third party may be used by Customer solely for said third party unless the latter permits otherwise.

7. Payment

   1. The agreed prices are fixed prices. They do not include value added tax, customs duty, freight, postage, insurance or packing.

   2. Payment shall be made in EURO within 14 days after proper delivery in accordance with the contract and receipt of invoice, minus a 2% discount, but at the latest on the thirtieth day of the month following delivery, with no deductions, or by separate arrangement. Payable is due immediately. Unless there is good cause for revocation, payment shall be deferred until the period for payment has expired.

   3. The agreed form of payment is bank giro transfer.
      Checks or bills of exchange shall be accepted only on the basis of a separate agreement and only as conditional payments. Until they are honored, claim to the full amount remains in force.

   4. Compliance with the period for payment depends on the date on which the amount is credited to the account of Supplier.

   5. The place of performance for all payments is the domicile of Supplier.

   6. Retention or reduction of payments due to complaints is not permissible unless Supplier has given its consent. Such consent is deemed to be granted in the case of claims by Customer that have been acknowledged in writing or finally and conclusively established by a court of law.

   7. Supplier has the right to assign its receivables from Customer and to have them collected by third parties.

8. Retention of Title

   1. Until payment has been rendered in full, Supplier shall retain ownership of all goods it has supplied. All deliveries made shall be deemed to be a contiguous supply transaction. If Customer has a current account, the retention of ownership shall also be deemed to be collateral for the debit balance of all amounts owed in connection with the business relationship.
      At the request of the Customer, Supplier shall release the collateral provided by Customer to the extent that its value exceeds that of the secured receivables by more than 20% in total.

   2. Customer has the right to process and sell the supplied goods within the normal course of business. Such processing and sale of goods shall be deemed to be on behalf of Supplier.

   3. If the goods supplied are inseparably mixed or processed with other objects that do not belong to Supplier, Supplier shall become a co-owner of the resultant goods in the ratio of the invoiced value of the reserved title goods to the value of the resultant goods.
      If Customer sells the goods or the items made with the goods, then the receivables arising from such sale shall be assigned proportionately to Supplier as collateral.
      Customer hereby assigns, as advance collateral to Supplier, the ownership of the goods, the right to recovery of such goods, and the claim to compensation for loss or damage, and Supplier hereby accepts such assignment.
      Customer shall provide information in this regard at any time on request.

   4. Customer has the right to collect the receivables that have been assigned to Supplier. Customer does not have the right to dispose of the receivables in any other way, e.g. in the form of assignment to third parties, pledge, gift, remission, etc. If Customer fails to honor its contractual obligations (in particular its obligations to pay), Supplier may revoke the authorization to collect outstanding amounts and require Customer to notify the debtors of the assignment of receivables.

   5. If goods or rights that are included in Supplier’s retention of title are attached by way of execution, or if application is made for insolvency proceedings against the assets of Customer, or if composition or deferral proceedings are conducted due to the threat of insolvency, Supplier shall be informed thereof without delay.

9. Quality

   1. Supplier shall operate at all times a quality system in accordance with ISO/TS 16949 (or equivalent).

10. Notification of Defects and Warranty

    1. Customer shall notify Supplier at the latest two working days after receipt of goods of any obvious damage to packaging and goods, any inconsistencies between the delivered items and the delivery note, the article numbers of article names in the order, as well as any differences in quantity. For the rest, any defects in the delivered items shall be notified to Supplier, with a clear description of the defects, as soon as such defects are discovered in the course of proper business procedures. Customer must send any notification of defects to Supplier without delay and in the form of written text.

    2. Before production (processing or installation) commences, Supplier shall be given opportunity to sort out any defective goods, to remedy defects or to replace defective goods with goods in perfect condition.

    3. Customer has the right to demand reimbursement for additional expenses only on condition that such reimbursement has been expressly agreed in writing with Supplier.

    4. The warranty period is 24 months as from the passing of risk.

    5. Warranty claims do not arise if the defect or error resulted from violation of operating, servicing or installation regulations, inappropriate or improper use or storage, incorrect or negligent handling and natural wear and tear, or from Customer or a third party tampering with the delivery item.

    6. Any guarantees in respect of condition and durability must be expressly agreed as such in writing to have effect.

11. Liability

    1. Unless other liability arrangements have been agreed elsewhere in these General Terms and Conditions, Supplier’s obligation to compensate for damages is determined solely by Section X above for damages incurred directly or indirectly by Customer as a result of defective delivery, violation of official safety regulations, or other legal grounds for which Supplier bears responsibility.
       Customer shall keep the damage and the costs for remedying the damage as low as possible. The Parties shall confer and agree on the action to be taken.

    2. As a basic principle, Supplier’s obligation to pay compensation is limited to those cases in which Supplier has culpably caused the damage in question. This principle shall not apply if, based on an imperative statutory regulation, Supplier bears a liability regardless of fault and is therefore under a direct obligation to pay compensation to Customer or to the person incurring damage.

    3. In the event of contributory causation of damage and/or defect under the warranty by Customer, or by a third party for whose actions or failure to act Customer must bear responsibility, the Parties are agreed that a settlement shall be paid for the costs to be borne. In such a case, appropriate consideration shall be given to the respective culpabilities of the Parties. The same principle shall apply also to any claims made directly against Supplier by a third party.

    4. The obligation to compensate shall be excluded or limited if and insofar as Customer, for its part, has excluded or limited its liability toward its customers with legal effect. Customer shall endeavor to agree legally permissible limitations of liability that also operate in favor of Supplier. Customer is obligated to inform Supplier accordingly.

    5. Claims by Customer are excluded to the extent that the damage is attributable to non-compliance with operating, servicing and installation regulations, to inappropriate and improper use, to incorrect or negligent handling, to natural wear and tear, or to defective repair.

    6. Supplier shall not be liable for production line stoppages or operational disruptions.

    7. Customer shall inform Supplier immediately and comprehensively if it intends to lodge claims against the latter under the above provisions. Customer shall give Supplier an opportunity to investigate the cause of the damage and the parts that have failed.

    8. When determining the amount of compensation to be paid by Supplier, Customer shall take into consideration the financial circumstances of Supplier, the type, scope and duration of the business relations, any contributory causation and/or culpability (pursuant to Section XI, item 3) and any particularly unfavorable situation for installation of the supplied part. In particular, the compensation, costs and expenses to be borne by Supplier shall be in reasonable proportion to the value of the supplied part.

    9. Lump-sum damage and warranty costs shall be reimbursed only on condition that they have been expressly agreed upon in writing. Supplier has the right to prove that actual costs are lower, and to reimburse the actual costs instead of the agreed lump sum.

12. Intellectual Property Rights

    1. Supplier shall bear liability for any claims that provably arise from the infringement of intellectual property rights through use of the supplied items in accordance with the contract, provided that at least one of the family of intellectual property rights is published either in the home country of Supplier, by the European Patent Office, or in one of the following states: Austria, France, Germany, Great Britain, USA. At the discretion of Supplier, said liability shall be limited to the procurement of a license for Customer at no charge, or a suitable replacement solution free of third-party intellectual property rights.

    2. If Supplier has produced the supplied items in accordance with drawings, models or other equivalent descriptions or specifications submitted by Customer, Customer shall hold Supplier free of all third-party claims based on infringements of intellectual property rights. Supplier shall bear no liability in this respect. The same principle shall apply in the event that stipulations are made by the final (OEM) customer or the systems supplier specified by the final customer.

    3. The Parties shall notify each other without delay of any infringement risks and cases of alleged infringement that come to their attention, and shall give each other the opportunity to jointly counter the respective claims that arise.

    4. In the case of development work carried out for Customer, the latter shall not acquire any new intellectual property rights from Supplier that ensue from said order or are included in the result of said development work, even if Customer bears all or part of the development costs. An explicit written agreement is required before rights of use may be granted.

13. Force Majeure

    1. Force majeure, strikes, lock-outs, civil unrest, government decrees and other unforeseeable, unavoidable and material events shall release the Parties from their obligations for the duration of the disturbance and to the extent of its impacts. This principle shall apply also if such events occur when the Party in question is in default.

    2. The Parties shall provide the necessary information without delay and to a reasonable extent, and, in good faith, shall adjust their obligations to the altered circumstances.

    3. Supplier may invoke his right of deferment for eight (8) weeks.

14. Performance of Work

    1. Persons who perform work on Supplier’s site to fulfill a contract for Customer shall comply with the work regulations stipulated by Supplier. The regulations governing entering and leaving the site must be complied with.
       Customer bears full liability for all damage that said persons cause when performing their activities for Customer. He shall indemnify Supplier, in particular its managers, employees and vicarious agents, against any liability for damage that occurs to said persons on the site.

15. General Provisions

    1. This Agreement is governed exclusively by the laws of Germany. The UN Convention of April 11, 1980 on Contracts for the International Sale of Goods (CISG) shall not be applicable.

    2. The exclusive place of jurisdiction is Hagen (Westfalia), Germany. Supplier has the right, however, to institute legal action against Customer at Customer’s domicile or at any other court with competent jurisdiction.

    3. The language of correspondence is German.

Lüdenscheid, March 2004

 

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