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KOSTAL Kontakt Systeme GmbH

 

General Conditions of Sale

 

  1. Definitive conditions

    1. These general conditions of sale are agreed between the parties to the contract, the customer and KOSTAL Kontakt Systeme GmbH (hereinafter referred to as the supplier) and are an integral part of all contractual relations. Any agreements made in writing which differ from these present conditions have precedence and replace wholly or in part and expand the following conditions.

    2. General conditions of sale issued by the customer which are not explicitly recognized do not become part of the contract, even if they are not individually rejected or if delivery contracts are executed in the knowledge of deviating conditions.

    3. Any change, addition, renunciation, acknowledgement, transfer, withdrawal, settlement, replacement, appeal, retraction or cancellation becomes effective in law only if it has been made in writing, insofar as it is to the detriment of the supplier. In the case of a unilateral legal act (for example, cancellation) the handwritten signature of the relevant authorized person under the written document is sufficient. Otherwise, the signatures of both parties to the contract are required in order to authorize the written form of the document.

    2.  

  2. Confidentiality

    1. The parties to the contract undertake to treat as commercial secrets all the commercial and technical information which becomes known by reason of the commercial relationship, where such information is not generally known.

    2. Documents made accessible to the customer, in particular drawings, models, templates, samples and similar objects, must not be made available to third parties. They remain the property of the supplier. Copying or reproduction is permitted only within the framework of operational necessity and terms of copyright and patents. At the supplier‘s request, all documents, objects and copies thereof must be surrendered, or destroyed where appropriate.

    3. Objects which have been produced in accordance with data, drawings or models or with the aid of tools and manufacturing facilities paid for by the supplier must not be offered, supplied as samples or delivered to third parties without the supplier‘s agreement.

    4. The supplier reserves the right to apply for patents and the use of his items and information.

    5. The customer must not advertise his commercial relationship with the supplier without written permission.

    3.  

  3. Orders; delivery schedules

    1. Orders, delivery schedules and changes and extensions to these must be transmitted in text form, in writing, by remote data transmission or by machine-readable data carriers. Verbal agreements require confirmation in writing.

    2. Delivery agreements are binding if the supplier does not contradict the orders and/or delivery schedules within 2 (two) weeks of their receipt. During this period the customer is bound to his order unless an earlier, final rejection is issued by the supplier.

    3. In the event of changes to the order quantity the customer is obliged to inform the supplier‘s schedulers without delay, in addition to the remote data transmission. If the customer demands a change to the object to be delivered, in terms of design, execution or quantity, the effects must be negotiated by joint agreement, particularly regarding increases or reductions in costs and delivery times.
      In the case of increases in quantities the supplier‘s delivery scheduling requirements must be taken into account to a reasonable degree.

    4. The supplier reserves the right to reject demands for changes in design and execution, in particular if the objects to be delivered were not designed specifically under contract to the customer and are not manufactured using tools paid for by the customer.

    5. With the existence of significant grounds the supplier is entitled to make the delivery dependent on the opening of a letter of credit, payment in advance, the presentation of import licences or the establishment of suitable securities (such as sureties, etc., for example).

    4.  

  4. Delivery dates and times, point of execution transfer of risk

    1. The supplier must comply with agreed timings and dates within the framework of his capabilities.

    2. Fulfilment in accordance with agreed dates is the point in time of transfer of the shipment to the shipping agent at the point of fulfilment of the contract. The transfer of risk to the customer takes place with this physical transfer.

    3. The point of fulfilment of the contract is the supplier‘s shipping department.

    5.  

  5. Packing, shipment, freight costs

    1. The goods to be delivered are packed appropriately and to normal trade standards. Contacts are delivered as standard in reusable packaging which must be returned free of charge to the supplier.

    2. The stipulations of INCOTERMS 2000 apply.

    6.  

  6. Acceptance, deviations in quantity, compliance with conditions

    1. The customer is bound by his blanket contracts and orders. His release for production extends on each occasion for one month unless a change is advised in good time.
      Scheduled quantities for the previous week and the first 8 (eight) weeks are binding.

    2. Deviations by the supplier from the quantity ordered are permitted in order to deliver in full packing units. The supplier is not permitted to charge any costs for these under or over-deliveries, nor to reject the delivery, either wholly or in part. Part-shipments are permitted provided these are reasonable for the customer.

    3. Products manufactured by the supplier using manufacturing facilities which are partially or wholly the property of a third party must be used by the customer only for this third party, unless the said party permits otherwise.

    7.  

  7. Payment

    1. The agreed prices are fixed prices. They are exclusive of value-added tax, customs charges, freight, carriage and insurance, as well as packaging where relevant.

    2. Payment must be made net in Euros within 14 days of delivery of the goods in accordance with the contract and receipt of the invoice, or by other special agreement. Payment is due immediately. Unless there are good grounds for cancellation payment must be made by the end of the specified payment period.

    3. The agreed form of payment is transfer by giro. Cheques or payment by exchange are accepted only following special agreement and also only on clearance of the payment. Until payments are cleared the claim for payment remains valid in full.

    4. The date of the credit to the supplier‘s account determines compliance with the payment period.

    5. The point of fulfilment for all payments is the supplier‘s registered premises.

    6. The withholding or reduction of payments because of complaints is permitted only with the agreement of the supplier. The agreement is deemed to apply to demands made by the customer and recognized in writing or found to be valid in law.

    7. The supplier is entitled to transfer his claims against the customer and to have them collected by third parties.

    8.  

  8. Retention of right of property

    1. The supplier retains property of all goods delivered by him until full and complete payment has been made. In this connection all deliveries represent one connected delivery event. In the case of running payments retention of property also extends to the securing of final payment of all obligations arising from the commercial relationship.
      On request the supplier will release the securities performed by the customer to the extent that their value exceeds the claims to be secured by more than 20% in total.

    2. Within the framework of regular business operations the customer is entitled to process the goods delivered and to issue them. The processing and issuing is on behalf of the supplier.

    3. If the goods delivered are mixed and processed with other items not belonging to the supplier, in such a way that they cannot be separated, the supplier becomes co-owner in relation to the invoice value of the retained goods, up to the full value of the newly created item.
      If the customer issues the goods or the items manufactured with the goods, the claims arising from such issuing shall be transferred for security to the supplier, in part if appropriate.
      To this extent the customer transfers in advance the ownership of the goods, the claims regarding their issue and claims fro replacement, loss or damage for security to the supplier, who hereby accepts this transfer. The customer will provide information on this at any time on demand..

    4. The customer is entitled to collect the claims which have been transferred to the supplier. He is not entitled to make use of the claims in any other way, for example by transferring them to a third party, allowing their seizure, giving them away, transferring them, etc.
      If the customer does not meet his contractual obligations (in particular payment obligations) the supplier can cancel the customer‘s authority to collect claims and can demand that the customer advise the debtor of the transfer.

    5. If items or rights which are covered by the supplier‘s right of retention of property are seized or if insolvency proceedings are launched in regard to the customer‘s assets, or if settlements and/or negotiations for deferment of payment are carried out, the supplier must be informed without delay.

    9.  

  9. Quality

    1. The supplier shall constantly maintain a quality assurance system to ISO/TS 16949 (or the equivalent).

    10.  

  10. Notification of deficiencies and warranty

    1. Obvious damage to packaging and goods, non-compliance of the items delivered with the delivery note and part-numbers or article descriptions, as well as differences in quantities must be reported by the customer at latest in 2 (two) days from receipt of the shipment. Further, the deficiencies in the shipment must be indicated with a fully traceable description of the defects, as soon as they are detected within the framework of normal business operations. The details of the deficiency must be transmitted by the customer to the supplier without delay, in text form.

    2. Before the start of production (processing or installing the goods) the supplier must be given the opportunity to sort or rework defective goods or to deliver fault-free goods in their place.

    3. The customer is entitled to demand damages for additional work only if this has been explicitly agreed in writing with the supplier.

    4. The warranty period is 24 months from the date of transfer of risk.

    5. Claims under warranty do not arise if the defect is the result of non-compliance with operating, maintenance and installation instructions, unsuitable or inappropriate use or storage, incorrect or negligent handling and natural wear and tear, as well as incursions by the customer or third parties into the goods delivered.

    6. Guarantees covering execution and durability must be explicitly agreed as such in wring in each individual case.

    11.  

  11. Liability

    1. Unless another regulation regarding liability is agreed at another point in these conditions, the supplier is obliged only to make good within the terms of Section X the damage caused to the customer as the indirect or direct result of a deficient delivery, because of infringement of public authority safety regulations or arising from any other legal grounds which are imputed to the supplier.
      The customer must keep the damages and the costs of repairing the damages as low as possible. The parties to the contract shall agree on the actions to be taken.

    2. The obligation of the supplier to accept a claim for damages exists in principle only if blame is attached to the supplier for the damages for which he is held responsible. This does not apply unless an irrefutable legal regulation obliges the supplier, independent of blame, to accept a direct claim for compensation in respect of the party directly affected or the customer.

    3. In the case of damages and/or deficiencies within the terms of the warranty, caused jointly by the customer or third parties, for whose dealings or neglect the customer must take responsibility, a settlement is made between the parties to the contract for the costs to be paid. In this the relative blame attached to those involved must be taken into account to a reasonable degree. This also applies in the case of a direct claim against the supplier by a third party.

    4. The obligation to pay compensation is excluded or restricted insofar as the customer, for his part, has excluded or restricted liability in respect of his customer. The customer must endeavour to ensure that restrictions regarding liability are also agreed in favour of the supplier to the extent permitted in law. He is obliged to provide the supplier with information.

    5. Claims by the customer are excluded to the extent that damages can be traced back to infringement of operating, maintenance and installation instructions, unsuitable and inappropriate use, defective or negligent handling, natural wear and tear or defective repair.

    6. The supplier is not liable for a stoppage of a production line or a break in operations.

    7. If the customer wishes to involve the supplier in accordance with the above regulations, he must inform him comprehensively and without delay. He shall give the supplier the opportunity to examine the cause of the damages and the failed parts.

    8. In determining the level of the claims for compensation to be met by the supplier, the customer must take account of the supplier‘s economic circumstances, the type, extent and duration of the business relationship, any contribution to the cause and/or blame for the damages (in accordance with Section XI Para. 3) and any particularly unfavourable installation situation for the part supplied. In particular the compensation, costs and efforts which the supplier is required to bear shall be related to a reasonable extent to the value of the part supplied.

    9. Compensation and warranty costs in the form of a lump sum are paid only if they have been specifically agreed in writing. The supplier has the right to demonstrate lower costs and to pay these instead of the agreed lump sum.

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  12. XII. Patents; copyright

    1. The supplier accepts liability for claims for compensation arising from the infringement of copyright or patent rights where the items delivered are used in accordance with the contract, where at least one of the set of copyright/patent claims has been published either in the supplier‘s home country or in one of the states of Austria, France, Germany, Great Britain or the USA. At the choice of the supplier this liability is restricted to the provision of a licence to the customer, free of charge, or a suitable replacement solution which is free from outside copyright or patent rights.

    2. Insofar as the supplier has manufactured the items delivered in accordance with drawings, models or equivalent descriptions and data provided by the customer, the customer indemnifies him against all claims for compensation by third parties because of infringements of copyright and/or patent rights caused thereby. To this extent, liability on the part of the supplier is excluded. The same applies in the event of claims by the end-customer (OEM) or the system supplier appointed by him.

    3. The parties to the contract are obliged to inform each other without delay of any risks of infringement and reported infringements of which they become aware, and to give themselves the opportunity to act in unison against any associated claims for compensation.

    4. In the case of development work for the customer, even if the customer bears the development costs either wholly or in part, the customer acquires no copyright or patent rights arising as new from this contract or contained in the result of the development. The concession of rights of use requires specific agreement in writing.

    13.  

  13. Force majeure

    1. Force majeure, work disputes, unrest, actions by public authorities and unforeseeable, inevitable and serious events release the parties to the contract from their performance obligations for the duration of the interference to the extent of their effect. This also applies if these events occur at a time when the party affected is in arrears.

    2. Within the realm of what is possible, the parties to 2. the contract are obliged to provide the necessary information without delay and to adapt their obligations to the changed circumstances in good faith.

    3. The supplier can call on his right to delay for 8 (eight) weeks.

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  14. Execution of work

    1. Persons who, in the execution of a contract for the customer, carry out work on the supplier‘s factory premises, must observe the working practices laid down by the supplier. The regulations governing entry to and leaving the factory premises must be complied with. The customer is liable for all damages which these persons cause in carrying out activities for the customer. The customer indemnifies the supplier, in particular the company‘s managers, employees and officers against liability for damages incurred by these persons on the factory premises.

    15.  

  15. General stipulations

    1. The laws of the Federal Republic of Germany apply exclusively. The application of the United Nations Agreement covering International Trade in Goods (CISG) dated 11 April 1980 is excluded.

    2. The sole court of jurisdiction is Hagen (Westphalia). However, the supplier is also entitled to take proceedings against the customer at the location of his registered offices or at another responsible court.

    3. The language for correspondence is German.

 

Lüdenscheid, November 2009

 

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