GENERAL TERMS AND CONDITIONS

K&N ENGINEERING INC. AND SRM (EUROPE) B.V.

1.            General

1.1.  In these conditions, both K&N Engineering and its subsidiary SRM (Europe) B.V. shall be referred to as “K&N”.

1.2.  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.

1.3.  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.

1.4.  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

2.1.  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 as such.

2.2.  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.

2.3.  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 every order.

2.4.  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.

3.    Prices

3.1.  Unless otherwise agreed in writing, all prices are exclusive of VAT, freight costs, insurance and or levies imposed by any government.

3.2.  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.

3.3.  K&N is entitled to modify its prices and price policy without prior notice and the Buyer shall pay the modified prices.

4.            Payment

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 partial-delivery separately.

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.

5.            Delivery and delivery time

5.1.  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.

5.2.  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 agreement.

5.3.  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.

5.4.  Partial-deliveries or deliveries in advance are permitted.

5.5.  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.  

5.6.  All risks relating to the products shall transfer to the Buyer at the moment of delivery.

6.    Claims of recovery

6.1.   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.

6.2.   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.

6.3.   Claims of recovery shall never give the Buyer the right to suspend any payment.

6.4.   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.

6.5.   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 Netherlands, within 30 (thirty) days of RGN number issuance.

7.            Retention of title

7.1.   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.

7.2.   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.

7.3.   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 calamities.

7.4.   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 basis.

7.5.   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.

7.6.   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 the Buyer.

8.    Stock adjustments 

8.1.   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.

8.2.   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.

8.3.   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.

8.4.   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, Mira Loma or Eersel).

8.5.   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.

8.6.   Credit issued for a stock adjustment may not be used as payment for any past due invoices.

9.            Warranty 

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 otherwise if:

a.     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;

b.     the product is damaged, abused or modified;

c.     the Buyer does not file his complaint in accordance with Article 9.3 of these Conditions.

9.3.   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 invoice).

9.4.   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.

9.5.   A defect in the products delivered shall not at any time entitle the Buyer to suspend any payment or to dissolve the agreement.

9.6.   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.            Liability

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 these Conditions.

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.

12.            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.

12.2. 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.

14.            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.

14.3. 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 address.

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.            Expiration time

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.

16.            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 excluded.

K&N´s Customer Service

K&N’s Customer Service:

Customer Service Desk
SRM (Europe) BV
Phone #:         +31 (0) 40 256 8678
Fax #:         +31 (0) 40 256 7687
Eindhoven.sales@knfilters.com

Open on business days from 09.00 to 17.00 hrs.

Copyright © 2008 K&N Engineering, Inc. All Rights Reserved.