GENERAL TERMS AND CONDITIONS
K&N ENGINEERING INC. AND SRM (EUROPE) B.V.
In these conditions, both K&N Engineering and its subsidiary SRM (Europe)
B.V. shall be referred to as "K&N".
Each person and or legal entity who requests K&N to provide any service
and/or to sell and deliver products, irrespective of whether or not an agreement
is actually entered into, shall be regarded as "Buyer" in these Conditions.
These conditions are applicable to and form part of all tenders, offers,
invoices, sales and deliveries and all agreements of K&N to or with the Buyer,
irrespective of whether or not an agreement is actually entered into.
Any general or other conditions of the Buyer shall not apply. The Buyer
can only rely on conditions that run contrary to or supplement these Conditions
and/or his own general or other conditions if, and insofar as, these have been
explicitly accepted in writing by K&N for the specific agreement concerned.
2. Offers, orders and the conclusion of agreements
All offers and tenders by K&N as well as all purchase orders from the
Buyer, both oral and in writing, are without obligations and not binding on K&N
All documents and data, including any design, drawings, models,
photographs, samples, indicated measurements, dimension and weight
specifications, or other information and data provided in catalogues, folders,
brochures and other documents, are as accurate as is reasonably possible, but
are not binding on K&N. They may not be considered as exact representations of
what K&N offers.
The Buyer shall place all purchase orders by e-mail or fax, directed to
K&N’s Customer Service Eindhoven office, and shall use a unique order number for
An agreement between K&N and the Buyer shall be concluded as soon as the
Buyer’s purchase order is confirmed in writing by K&N, or as soon as K&N has
initiated the execution of such purchase order, whichever is the sooner.
Unless otherwise agreed in writing, all prices are exclusive of VAT,
freight costs, insurance and or levies imposed by any government.
The purchase price of the products shall be based on the prices set out
in K&N’s Manufacturer Suggested Retail Prices, in Euro’s or American dollars
(whichever is applicable) that is current at the time the order is placed. Trade
discounts may be given by K&N, at its sole discretion. These trade discounts do
not apply automatically but will be decided on a case-to-case basis.
K&N is entitled to modify its prices and price policy without prior
notice and the Buyer shall pay the modified prices.
4.1. The Buyer shall ensure that payments are received into K&N’s bank account,
as indicated on the invoice, on the date agreed upon, or if no such date has
been agreed upon, within 60 (sixty) days from the invoice date.
4.2. K&N has the right at all times to demand payment in advance, down payment,
or cash payment at the time of delivery, as well as the right to request
security for the payment of the purchase price of the products to be delivered.
The buyer shall comply with such demands. K&N is entitled to invoice every
4.3. Any dispute arising out of any invoice does not relieve the Buyer of its
responsibility to pay the entire invoice in accordance with Article 4.1. Any
invoice discrepancy must be submitted to K&N in writing within 30 (thirty) days
of the date of invoice, failing which the Buyer shall forfeit its right to
invoke the relevant claim against K&N.
4.4. As soon as the payment period as set forth in Article 4.1 above has been
exceeded, the Buyer shall be deemed to be in immediate default by operation of
law, without any further notification of default being required. In such an
event, all K&N’s claims against the Buyer, irrespective of their nature, shall
become immediately due and payable, and K&N shall also be entitled to claim
payment of interest at 2 % per month, to be calculated on a monthly basis in
respect of the whole of the invoice value, it being understood that a part of a
month shall be charged as a full month.
4.5. All expenses related to extra judicial and/or judicial collection of any
claim against the Buyer, shall be for the account of the Buyer. Such expenses
are estimated to be 15% of the sum to be collected, but never less than Euro
750, without prejudice to K&N’s right to claim the actual costs made.
4.6. All K&N's claims against the Buyer, irrespective of the nature thereof,
shall become immediately due and payable in the event that an attachment is made
to part or all of the Buyer's assets, the Buyer’s suspension of payment or
bankruptcy is requested, the Buyer offers a settlement to its creditors or
otherwise proves to be insolvent, the Buyer proceeds to liquidate its company,
the Buyer chooses a different legal form to practice its enterprise, a change of
ownership of the Buyer occurs, the Buyer transfers it’s rights under the
agreement(s) with K&N to a third party, or changes its registered office and/or
relocates its domicile to a location abroad.
4.7. Unless agreed otherwise, each payment made by the Buyer shall first be
applied against any interest or costs due and then, once these have been settled
in full, against the oldest outstanding invoice, regardless of whether or not
the payment expressly indicates otherwise.
4.8. The Buyer shall not be permitted to set off any of its debts against any
disputed or undisputed debt owed by K&N to the Buyer, or to suspend payment of a
debt of K&N in connection with any disputed or undisputed debt to the Buyer.
Delivery and delivery time
Unless agreed otherwise in writing, deliveries
shall be made according to the attached Freight Policies and the relevant
provisions of the most recent Incoterms. K&N reserves the right to exclude the
Buyer from the "Freight Program" as set out in the Freight Policies, by giving
written notice, in
the event that the Buyer fails to meet any of its obligation on time and/or in
full or in part, pursuant to the agreement. From that time on, further
deliveries shall be made EX-Works.
Delivery times specified by K&N are approximate only, and shall never be
considered final or of the essence. Exceeding the delivery time shall never
entitle the Buyer to compensation for direct or indirect damages, dissolution of
the agreement or non-fulfilment or suspension of any obligation ensuing from the
Any shortage in deliveries must be reported by the Buyer to K&N’s
Customer Service Eindhoven office
by fax or email within 7 (seven) business days after receipt of the
shipment. If K&N is not notified of
any discrepancies, the delivery will be assumed to be accepted and be in
conformity with the order. Notifications or claims received after the term of 7
business days shall not be honoured.
Partial-deliveries or deliveries in advance are permitted.
The Buyer is obliged to accept in full the products delivered by K&N at
the moment K&N delivers the products to the Buyer. Back orders will be delivered
with the next order, unless the products are not available at the time of the
next order, in which case K&N will deliver as soon as these products become
available, unless otherwise requested by the Buyer and agreed upon by K&N.
All risks relating to the products shall transfer to the Buyer at the
moment of delivery.
6. Claims of recovery
Claims of recovery with regard to visible defects in the products must be
submitted in writing within 7 (seven) days commencing on the day of delivery.
Failure to do so shall result in the Buyer forfeiting its right to invoke the
relevant claim against K&N.
Claims of recovery with regard to non-visible defects must be submitted
to K&N within 7 (seven) days of the date on which the defects were or could
reasonably have been discovered. Such claims must in any event always be
submitted in writing within 3 (three) months commencing on the day of delivery.
Failure to do so shall result in the Buyer forfeiting its right to invoke the
relevant claim against K&N.
Claims of recovery shall never give the Buyer the right to suspend any
If and to the extent that K&N finds that a recovery claim relating to the
products is justified, and the Buyer has, in K&N’s opinion, provided
satisfactory evidence as to the defects existing at the time of delivery, K&N
shall, at its own discretion, either (1) replace the products free of charge;
(2) repair the product or the defective part of the product; or (3) refund the
purchase price of the products to the Buyer, without being under any obligation
to pay compensation.
Products that have been reported to be defective pursuant to Articles 6.1
or 6.2 can only be returned in the event K&N has given its express prior written
consent and has provided the Buyer with a Return Goods Notice (“RGN”) number.
Without such prior obtained consent and RGN number K&N will refuse any returned
products. All returned products must be shipped DDP-prepaid, in accordance with
the most recent version of the Incoterms, including all duties to the K&N
Distribution Centre in the UK, within 30 (thirty) days of RGN number issuance.
Retention of title
Without prejudice to the transfer of risk pursuant to Article 5.6 of
these Conditions, K&N shall retain title to all products delivered to the Buyer
until all amounts due in connection with any agreement or any order have been
paid in full, such amounts to include interest and costs to which K&N is
entitled concerning any default by the Buyer to comply on time or properly with
any agreement and any order.
During the retention of title, the Buyer shall not be entitled to pledge
the products or encumber the products with any right in favour of any third
party. Notwithstanding the retention of title as described in this article, the
Buyer shall have the right to sell the product in its ordinary course of
business. The Buyer shall agree retention of title clause with its customers
that are substantially similar to the arrangement in this article.
The Buyer shall, for the duration of the retention of title, apply a
reasonable degree of care towards the products, including adequate insurance of
the products, against damages including, but not limited to, damages caused by
fire, explosion and flooding by water, as well as against theft and other
If the Buyer fails to observe in full its payment obligations to K&N, or
if K&N has good reason to believe that the Buyer will not fulfil these
obligations in relation to the products supplied but not paid for, or in the
event that third parties claim rights in connection to such products, or if a
petition for bankruptcy or suspension of payment is filed, the Buyer is involved
in a winding up (voluntary or not) of all or parts of its business activities or
makes any settlement with creditors, any assets of the Buyer are seized, the
Buyer’s right to sell products which are still subject to the retention of
title, shall lapse automatically and K&N shall be entitled to have such products
collected, and recover possession thereof on either a temporary or a definite
In the event that any third party claims a right in connection with
products delivered by K&N to the Buyer but not paid for, the Buyer shall be
obliged to forthwith notify K&N thereof within 24 (twenty-four) hours after the
Buyer became aware of such claim.
The costs related to the recovery of possession, including costs of
transportation and storage shall be at the expense of the Buyer. After
recovering possession, K&N shall be entitled, but not in any way obliged, to
sell the products to any third party, it being understood that the fair market
value or the net sales proceeds of such products, whichever amount is lower,
will be deducted from the amounts payable by the Buyer, without prejudice to
K&N’s right to receive full compensation for the damage caused by the default of
8. Stock adjustments
Annually, K&N offers the Buyer an opportunity to balance its inventories
and to eliminate slow-moving products by adjusting its stock. This restocking
program only applies to products that have been purchased within the previous
two years, and that are in resalable condition and still available in the
catalogue current at the time of the stock adjustment.
Authorized stock adjustments will be accepted by K&N during the months of
January and February each year. All stock adjustment requests must be submitted
in writing, including K&N part numbers and quantity per part number.
The restocking program is offered as a courtesy to the Buyer and K&N is
free to determine whether or not it will accept a stock adjustment request. In
any event, K&N shall not accept any request from the Buyer if the Buyer failed
to comply to any obligation towards K&N or if the Buyer and K&N are not in good
standing. All stock adjustments are limited to 3 % of the Buyer’s net K&N sales
in the previous year.
If a request has been authorized in writing by K&N, including a Return
Goods Notice (RGN) number, the Buyer can return the products, under freight
prepaid to K&N. (Applicable warehouse, i.e; Citrus, Manor Park or Warrington).
All products will be credited at the purchase price paid by the Buyer. If
the Buyer does not submit a two-for-one offsetting order (meaning: for returns
of value "X" a new order for "2X" will need to be placed at the same time) as
the stock adjustment request, then K&N will charge a repackaging and handling
charge of 15% of the total return, which will be deducted from the purchase
price to be credited.
Credit issued for a stock adjustment may not be used as payment for any
past due invoices.
9.1. The following products are warranted against defective materials or
workmanship for one million miles or 10 years from the date of purchase,
whichever comes first: any Filtercharger air filter element and used as an OEM
replacement element with numbers in the E-0000-E-2000 and 33-0000 series and
motorcycle original equipment replace element, except when the products are used
for any type of racing or competition, any off-road use, custom or modified
applications, any non highway use, marine, aircraft or industrial applications.
All other products, the so called Filtercharger Racing & Off Road air filter
elements, are warranted against defective materials or workmanship for one year
from the date of purchase with no mileage limitation.
9.2. The Buyer shall not be entitled to any claim under the warranty or
the product has not been serviced correctly, by using K&N cleaner and air
filter oil per the prescribed routine as outlined in the product literature that
accompanied the product;
the product is damaged, abused or modified;
the Buyer does not file his complaint in accordance with Article 9.3 of
In the event of a defect appearing during the period (or mileage) of
warranty as set out in Article 9.1., the Buyer shall notify K&N of this
complaint by returning, at his own expense, a completed Warranty Registration
Card or register the complaint on line at www.knfilters.com to K&N’s Customer
Service Eindhoven office accompanied by a proof of purchase (original receipt or
If K&N is of the opinion that the complaint is justified and the terms of
the warranty have been properly complied with, it shall replace the product free
of charge. Costs exceeding the normal costs of replacement of the product shall
be for the account of the Buyer.
A defect in the products delivered shall not at any time entitle the
Buyer to suspend any payment or to dissolve the agreement.
The warranty as referred to in Article 9.1 is exclusive and all other
guarantees, whether express or implied, including any guarantees of
merchantability, and any guarantees of fitness of purpose, but without
limitation thereto, are excluded.
10.1. K&N shall not accept any other liability for non-conformity of K&N’s
products other than those warranted in Article 9 of these Conditions, nor shall
K&N accept any liability for damage and/or loss ensuing from or caused by the
use of the products or K&N’s failure to perform its obligations under any
agreement with the Buyer or any order from the Buyer or caused by a wrongful act
to the Buyer, unless caused by an intentional act or intentional omission or
gross negligence of K&N’s management or the managerial staff. K&N shall also not
accept any liability for damage and/or loss that can be attributed to an act or
omission of the Buyer, an employee of the Buyer or a third party acting on
behalf of the Buyer.
10.2. K&N shall not accept any liability whatsoever for consequential damages,
including damage or loss ensuing from late delivery and loss of profit.
10.3. K&N’s liability shall at any time be limited to the purchase price of the
damaged products, or, when covered by any insurance of K&N, to the amount that
is paid for the matter concerned under the relevant insurance policy of K&N.
10.4. K&N may impose the obligation on the Buyer to take products that the Buyer
has brought onto the market and which are defective or in which a defect has
been discovered, off the market within a reasonable period of time, the length
of which is to be determined by K&N (recall action). All expenses involved
therein and/or all damages ensuing there from are for the account of the Buyer,
unless K&N can be blamed for the defect in accordance with Articles 9 and 10 of
11. Obligations for the Buyer and indemnification
11.1. The Buyer must comply with all instructions and directions supplied with
the products, as well as those included in the Material Safety Data Sheets
(available upon request or at www.knfilters.com), that are necessary for the use
of the products, or that contribute to the durability and safety of the products
as well as the safety of the users of the products. Furthermore, in case the
Buyer resells the products, it shall provide its customers and other third
parties using the products with the applicable (operation) instructions.
11.2. In the event that the Buyer resells the products, it shall make sure that
the products are suitable for sales or use in the country the Buyer sells the
products into, and particularly that they comply with all applicable (including
but not limited to trade-, product- and safety) provisions, regulations or
recommendations in force or customary in such market. If necessary, the Buyer
shall adjust the labelling of the products to the local standards.
11.3. Non-observance of any of the provisions of these Conditions from which K&N
sustains damage, shall oblige the Buyer to pay compensation for all damage
thereby caused to K&N, including damage resulting from K&N's name and reputation
being tarnished. The Buyer shall indemnify K&N against all claims from third
parties for compensation for any damage suffered by such third parties caused by
or otherwise related to non-observance by the Buyer of the provisions contained
in these Conditions.
Suspension and dissolution
12.1. If and as soon as the Buyer fails to fulfil one or more of its obligations
either promptly or properly, a petition is filed for the Buyer’s bankruptcy or
suspension of payment, proceeds to liquidate its company, its company is
discontinued for any other reason, an attachment is made to part or all of its
assets, offers a settlement to its creditors, or otherwise appears to be
insolvent, K&N shall have the right to, at K&N’s discretion, (1) suspend K&N’s
(further) performance of all agreements concluded with the Buyer until the
latter has fulfilled its obligations, or (2) dissolve the agreement and all
other agreements with the Buyer, or the unfulfilled part thereof, in both cases
by giving written notice to the Buyer, without judicial intervention being
required, and without thereby incurring any liability to the Buyer for damages,
costs and interest, and without prejudice to the unrestricted right of K&N to
claim full compensation for damages.
The Buyer is not entitled to dissolution of the agreement between K&N and
the Buyer on the basis of Articles 6:265 and 6:258 of the Dutch Civil Code,
unless specifically provided for such right in these Conditions.
13. Force Majeure
13.1. A state of force majeure shall exist if the execution of the agreement, in
its entirety or in part, irrespective of the fact that it may be temporary or
permanent, is impeded as a result of circumstances beyond the control of the
parties and/or as a result of circumstances which occur on K&N’s side, such as,
but not limited to, strikes, lockouts, blockade, war, riots, obstruction of
transport and other disruptions to transport, accidents, fire, interruption of
work, import or export restrictions, above-average levels of illness, delays or
failures in deliveries from K&N’s suppliers, and delays in the processing of
products by third parties for K&N.
13.2. In the event of force majeure, the obligations incumbent on the parties
shall be postponed. If the duration of the force majeure exceeds 3 (three)
months, each of the parties shall be entitled to unilaterally dissolve the part
of the agreement which has not been performed, by giving written notice to the
other party, without either party being held liable to pay damages to the other.
Intellectual and industrial property rights
14.1. All intellectual and industrial property rights pertaining to the products
manufactured, sold and delivered, such as, but not limited to, trade marks,
trade names, patents, models, drawings, designs, brochures, symbols, slogans and
other designations with regard to products, are retained by K&N. Delivery of
K&N’s products shall not be construed as an express or implied licence to use,
copy, publicise, exploit or disclose any part thereof to third parties,
unless prior written consent is obtained by K&N or unless otherwise stipulated
in these Conditions.
14.2. All prototypes, samples, designs, sketches, drawings, brochures and other
documents supplied by K&N to the Buyer as may be subject to any intellectual
and/or industrial property rights or equivalent rights, as well as the
intellectual and/or industrial property right pertaining thereto, shall remain
K&N’s property, and must be returned to K&N upon K&N’s first request.
The Buyer agrees not to remove or wear away any of K&N’s trademarks,
service trademarks, designs, markings, logo’s trade names on any products,
hereinafter collectively referred to as the "Trademarks". All resulting use of
any of the Trademarks shall solely be used to the benefit of K&N. The Buyer
shall not use any of the Trademark, or any mark or name confusingly similar
thereto in any manner, except that the Buyer may use the Trademarks (a) on
letterhead, business cards and signs in order to identify itself as an
authorised distributor of K&N, or (b) in sales and promotional materials,
provided that such materials comply with the "K&N Co-Op Advertising Policy". The
Buyer is not allowed to use the Trademarks or any variation thereof as part of
the Buyer’s corporate name, business name, internet web site address or e-mail
14.4. The Buyer shall notify K&N immediately in writing in the event that any
legal action is instituted against the Buyer relating to the use of K&N’s
intellectual and/or industrial property rights, or when the Buyer becomes aware
of any infringement or illegal use of these rights in relation to the products
by any third party. The Buyer agrees to co-operate fully with any possible
action of K&N against any possible claims or suits in respect of the
intellectual and/or industrial property rights.
15.1. Unless explicitly stated otherwise in these Conditions or the agreement
between the parties, the right to make any legal claim by reason of these
Conditions, shall lapse upon expiration of 1 (one) year from the date of
delivery or 1 (one) year from the date delivery should have taken place.
Disputes and applicable law
16.1. These terms and conditions and all agreements, invoices and other
documents of K&N, as well as the interpretation thereof, are governed by the
laws of The Netherlands, with the exception of the Dutch international rules of
conflict (“internationale privaatrechtelijke conflictregels”).
16.2. All disputes resulting from or otherwise related to the agreement and/or
these terms and conditions, shall be submitted to the competent court in
Amsterdam, The Netherlands.
16.3. The applicability of the United Nations Convention in Respect of
International Purchase Transactions Regarding Movable Property is explicitly
K&N's Customer Service
Customer Service Desk
SRM (Europe) BV
+31 (0) 40 256 8678
+31 (0) 40 256 7687
Open on business days from 09.00 to 17.00 hrs.