General Terms and Conditions of Sale
Applicable terms and conditions
These general terms and conditions of sale form an integral part of all contractual
relations between the parties, namely the customer and Leopold Kostal GmbH &
Co. KG (the supplier). Any written agreements deviating from these terms and
conditions shall take priority and shall replace in whole or in part, or supplement,
the following Terms and Conditions.
Any of the customer's terms and conditions 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.
- Any amendment, addition, waiver, acknowledgment, assignment, transfer,
offsetting, representation, objection, withdrawal or notice of termination having an
adverse impact on the 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 appropriately entitled person at the end of the document, in his
or her own hand. Otherwise, the signatures of both parties are necessary in order
to conform with the requirement of the written form.
The parties to the contract shall treat as business secrets all commercial and
technical information not generally available which becomes known to them
through the business relationship.
Documents made available to the customer, in particular drawings, models,
templates, samples and similar items, must not be provided to unauthorized third
parties. They shall remain the property of the supplier. Copying is permissible
only to the extent that it is required for operational purposes and accords with
copyright regulations. At the supplier's request, all documents, items and copies
thereof shall be surrendered or, if necessary, destroyed.
Items manufactured according to specifications, drawings or models, or with the
aid of tools and production facilities paid for by the supplier must not be offered,
given as samples or otherwise supplied to third parties without the supplier's
The supplier reserves the right to file applications for intellectual property rights,
and to exploit the rights of use for his items and information.
The customer must not advertise his business connection with the supplier
without the supplier's written consent.
Orders; delivery schedules
Orders, delivery schedules 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 must be confirmed in writing.
Orders shall become binding only if the supplier confirms them in writing within 3
(three) weeks of their receipt. In the case of delivery schedules the period is 2
(two) weeks. During these periods the customer is bound to his orders, unless
they are finally refused at an earlier date by the supplier.
- If changes are made to the ordered quantity, the customer must inform the
supplier’s scheduler without delay, in addition to supplying the information by
remote data transmission.
If the customer requests a change in the design, execution or quantity of the item
to be supplied, the effects of such changes, 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 supplier's
The supplier reserves the right to refuse changes in design and execution which
are requested, particularly when the items to be supplied are not designed solely
to the customer's order of Customer and are manufactured using tools paid for by
- If one of the parties to the contract stops payments or if a bankruptcy action is
taken against his assets, or if insolvency proceedings, legal or otherwise are
taken against him, the other party to the contract is entitled to withdraw from the
part of the contract which has not been fulfilled.
If there is good cause, the supplier is entitled to make delivery dependent on the
opening of a documentary letter of credit, cash in advance, the presentation of
import licences or the provision of suitable collateral (such as guarantees, etc.).
If a third party has paid the manufacturing equipment costs to the supplier for a
product, or if that third party has ownership of such manufacturing equipment, the
product may be processed by the customer only for that third party.
Delivery dates; deadlines; place of execution; transfer of risk; delays
The supplier shall comply to the best of his ability with agreed dates and
The criterion for timely performance shall be the date when the shipment is
transferred to the transport company at the place of execution of the contract.
The risk passes to the customer when this transfer is effected.
- The place of execution of the contract is the supplier's Goods Outwards
Legislative regulations apply in the case of delays.
Packing; shipping; freight costs
- The goods to be supplied shall be packed in an appropriate manner in standard
trade packing. If the goods to be supplied are packed by agreement in returnable
packaging, this packaging must be returned free of charge to the supplier.
Any different packing requirements requested by the customer will be
implemented if possible. If these packing costs are higher than the costs
originally stated in the quotation, the additional costs shall be borne by the
Unless otherwise agreed the goods are shipped from the place of execution in
Lüdenscheid, all charges forward, to the delivery point stated by the customer.
The legal regulations apply to this extent to the cost of shipping.
The terms of INCOTERMS 2000 apply.
The goods travel at the customer's cost and risk if collection has been agreed
with prior statement of the collection date.
Additional freight costs caused by the customer shall be charged to the
If the volume of the business makes it reasonable, the customer is obliged to
share the costs incurred by the supplier in obtaining re-usable transport
containers, if the supplier so demands.
Acceptance checks; deviations in quantities; compliance with
The customer is bound to his framework contracts and orders. His release for
production shall be extended automatically by one month if a change is not
notified in good time. Quantities called off in the previous week and during the first eight weeks are
- The supplier is permitted to deviate from the ordered quantity in order to deliver
in full packaging units. The customer is not permitted either to claim costs or to
refuse the delivery in whole or in part on the basis of these excess or short
deliveries. Part-deliveries are permissible if they are acceptable to the customer.
The agreed minimum order quantities must be complied with.
The agreed prices are fixed prices. Unless otherwise agreed, value added tax,
customs duty, freight, postage and insurance can be invoiced in addition, as well
as packing and material price surcharges if appropriate.
Payment shall be made in Euros, following the arrival of the goods and the
invoice in accordance with the contract, on the 25th day of the month following the
delivery, either nett or by separate agreement. The timing is the arrival of the
credit in the supplier's account.
The agreed form of payment is by bank giro transfer. Cheques or bills of
exchange are accepted only by special agreement and only in order to fulfil the
contract. Until they are honoured the claim for payment remains in force and in
The place of execution for all payments is the supplier's domicile.
- The retention or reduction of payments because of complaints is permitted only
with the supplier's consent. Such consent is deemed to be granted in the case of
claims by the customer which have been acknowledged in writing or conclusively
established by a court of law.
The supplier is entitled to transfer his claims against the customer and to have
them collected by third parties.
Retention of ownership
- Until payment has been rendered in full, the supplier shall retain ownership of all
goods he has supplied. All deliveries made shall be deemed to be a contiguous
supply transaction. If the customer has a current account, 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 customer's request, the supplier shall release the collateral provided by the
customer to the extent that its value exceeds that of the secured receivables by
more than 20% in total.
The customer has the right to process and sell the goods supplied, within the
normal course of business. Such processing and sale of goods shall be deemed
to be on behalf of the supplier.
If the goods supplied are inseparably mixed or processed with other objects
which do not belong to the supplier, the supplier shall become a co-owner of the
resultant goods in the ratio of the invoiced value of the goods to which title is
reserved, to the value of the resultant goods.
If the customer sells the goods or the items made with the goods, then the
receivables arising from such sales shall be assigned proportionately to the
supplier as collateral. The customer hereby assigns, as advance collateral to the
supplier, the ownership of the goods, the right to recovery of such goods, and the
claim to compensation for loss or damage, and the supplier hereby accepts such
The customer shall provide information in this regard at any time on request.
The customer has the right to collect the receivables which have been assigned
to the supplier. He 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,
If the customer fails to honour his contractual obligations (in particular his
obligation to make payments), the supplier may revoke the authorization to
collect outstanding amounts and require the customer to notify the debtors of the
assignment of receivables.
If goods or rights included in the supplier’s retention of title are attached by way
of execution, or if an application is made for insolvency proceedings against the
customer's assets, or if composition or deferral proceedings are conducted due
to the threat of inability to pay, the supplier shall be informed thereof without
- If the value of the securities exceeds the claims of the supplier by more than
20 % the supplier is obliged to release the securities to this extent at the
Legal environmental conditions
The supplier shall identify his goods in accordance with legal regulations and
shall make available the necessary information regarding materials via the IMDS
The customer is entirely responsible for disposal in accordance with law.
- The supplier shall operate at all times a quality assurance system in accordance
with ISO/TS 16949 and DIN EN ISO 14001 (or the equivalent).
Notification of deficiencies and warranty
- The customer shall notify the supplier two working days at latest after receipt of
goods of any obvious damage to packaging and goods, any inconsistencies
between the items delivered and the delivery note, the article numbers or article
descriptions in the order, as well as any differences in quantity. Otherwise, any
defects in the items delivered shall be notified, with a clear description of the
defects, as soon as such defects are discovered in the course of proper business
procedures. The customer must send any notification of defects to the supplier
without delay and in the form of written text.
Before production (processing or installation) commences, the supplier shall be
given an opportunity to sort out any defective goods, to remedy defects or to
replace defective goods with goods in perfect condition. The goods to be
replaced shall be made available to the supplier at his request and at his cost.
The customer has the right to demand reimbursement for additional expenses
only on condition that such reimbursement has been expressly agreed in writing
with the supplier.
If the deficiency is detected only after manufacturing has begun, the customer
can claim damages over and above the existing regulations, for additional
expenses only if this has been expressly agreed with the supplier.
The warranty period is 24 months from the transfer of risk, unless otherwise
- Claims by the customer are excluded to the extent that the defect is traced to
violation of operating, servicing or installation regulations, inappropriate or
improper use, incorrect or negligent handling and natural wear and tear, or a
Any guarantees in respect of condition or durability must be expressly agreed as
such in writing and in each individual case.
Insofar as warranty is not otherwise regulated in the foregoing, the legal
regulations shall apply.
- Unless other liability arrangements have been agreed elsewhere in these
General Terms and Conditions, the supplier is obliged to compensate for
damages solely in accordance with Section XII for damages incurred directly or
indirectly by the customer as a result of defective delivery, violation of official
safety regulations, or any other legal grounds for which the supplier bears
responsibility. The 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.
As a basic principle, the supplier’s obligation to pay compensation applies only if
the supplier is culpable for the damage in question. This principle shall not apply
if, based on an imperative statutory regulation, the supplier bears a liability
regardless of fault and is therefore under a direct obligation to pay compensation
to the customer or to the person incurring the damage.
- In the event that the customer is a contributory cause of the damage and/or
defect under the warranty, or a third party whose actions or failure to act are the
responsibility of the customer, the parties will agree on a settlement to 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 the supplier by a third party.
The obligation to compensate shall be excluded or limited if and insofar as the
customer, for his part, has excluded or limited its liability toward its customers
with legal effect. The customer shall endeavour to agree legally permitted
limitations of liability which also operate in favour of the supplier. The customer is
obliged to inform the supplier accordingly.
The supplier accepts no liability for line stoppages or interruptions in production
unless otherwise agreed.
- The customer shall inform the supplier immediately and comprehensively if it
intends to lodge claims against the latter under the above provisions. The
customer shall give the supplier an opportunity to investigate the cause of the
damage and the parts which have failed. The parties shall agree on the actions
to be taken, in particular the compensation negotiations.
In determining the claim for compensation to be paid by the supplier, the
customer shall take into consideration the supplier's financial circumstances, the
type, scope and duration of the business relationship, any contributory causes
and/or culpability (pursuant to Section XI, item 3) and whether the installation
point for the part supplied is particularly unfavourable. In particular, the
compensation, costs and expenses to be borne by the supplier shall be in
reasonable proportion to the value of the part supplied.
Lump-sum damages and warranty costs shall be paid only on condition that they
have been explicitly agreed in writing. The supplier has the right to show that the
actual costs are lower and to pay these instead of the agreed lump-sum.
Unless otherwise agreed, the supplier's liability is restricted within the framework
of what is legally permissible to a maximum of 3 % of the annual turnover of the
product in question, for all the claims made in the year with regard to warranty,
replacement or damages.
Copyright / patent rights
- The supplier shall bear liability for any claims shown and proven to have arisen
from the infringement of copyright or patents through use of the items supplied in
accordance with the contract, provided that at least one of the family of copyright
or patents is published either in the supplier's home country, by the European
Patent Office, or in one of the following states: Austria, France, Germany, Great
Britain, USA. At the supplier's discretion, this liability shall be limited to the
procurement of a licence for the customer at no charge to him, or a suitable
replacement solution free of third-party copyright and patents.
If the supplier has produced the items supplied in accordance with drawings,
models or other equivalent descriptions or specifications submitted by the
customer, the customer shall hold the supplier free from all claims by third-parties
based on infringements of copyright and patents. The 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.
The parties are obliged to notify each other without delay of any infringement
risks and cases of alleged infringement which come to their attention, and shall
give each other the opportunity to counter jointly any associated claims which
Where development work is carried out for the customer, the customer shall not
acquire any new copyright or patent rights from the supplier which arise from the
order or are included in the result of said development work, even if the customer
bears all or part of the development costs. An explicit written agreement is
required before rights of use may be granted.
- Force majeure, labour disputes, civil unrest, actions by public authorities 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
impact on the contractual obligations. This principle shall apply also if such
events occur when the party in question is in default.
The parties shall provide the necessary information without delay within the
realm of the possible and shall adjust their obligations in good faith to the altered
The supplier may invoke his right of deferment for 8 (eight) weeks.
Execution of work
- Persons carrying out work on the supplier’s site to fulfil a contract for the
customer shall comply with the working regulations stipulated by the supplier.
Regulations governing entering and leaving the site must be complied with. The
customer bears full liability for all damage caused by such persons when carrying
out their activities for the customer. The customer shall indemnify the supplier
and in particular his managers, employees and authorised agents, against any
liability for damage that occurs to said persons on the site.
This agreement is governed exclusively by the laws of the Federal Republic of
The exclusive place of jurisdiction is Hagen (Westphalia), Germany. However,
the supplier is entitled to institute proceedings against the customer at his
domicile or at any other court with appropriate jurisdiction.
- The language for correspondence is German or English.