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General Terms and Conditions

I. General

  1. All deliveries and services are based exclusively on these terms and conditions and any separate written agreements. Conflicting or deviating contractual terms and conditions of the customer shall not become part of the contract unless they have been expressly acknowledged, and even then only if they have not been expressly contradicted.
  2. SOMA reserves all property rights and copyrights to samples, cost estimates, drawings, and similar information of a physical and non-physical nature, including in electronic form; they may not be made accessible to third parties.

II. Offer

  1. All offers made by SOMA are subject to change. The contract shall only come into effect upon our order confirmation. If delivery is made without the customer receiving prior confirmation, the contract shall come into effect upon acceptance of the delivery. Upon acceptance of the delivery, the customer acknowledges these terms and conditions.
  2. The documents belonging to the offer, such as illustrations, drawings, weight and dimension specifications, are only approximate unless they are expressly designated as binding. We reserve the right to make technical, design and customary changes to the delivery item, provided that these do not unreasonably affect the customer and do not impair the usability of the item.

III. Price and Payment

  1. Unless otherwise agreed in writing, prices are ex works including loading at the factory, but excluding packaging and unloading. Value added tax at the applicable rate shall be added to the prices.
  2. Unless otherwise agreed in writing, payment shall be made without any deductions to SOMA's account as follows: 
    1/3 down payment upon receipt of the order confirmation, 
    1/3 as soon as the customer is notified that the main parts are ready for shipment, 
    the remaining amount within one month after transfer of risk.
  3. The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established or are counterclaims arising from the same contractual relationship.

IV. Delivery

  1. The delivery time is based on the written agreements between the parties. SOMA will stick to it as long as all business and technical questions between the parties have been sorted out and the customer has done everything they need to do, like getting the necessary official certificates or approvals or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if SOMA is responsible for the delay.
  2. Compliance with the delivery period is subject to correct and timely delivery by our suppliers. SOMA shall notify the customer of any delays as soon as possible. The same shall apply to other unforeseen obstacles that are beyond our control and which we could not avert despite exercising reasonable care in the circumstances of the individual case, or in cases of force majeure, regardless of whether they occur at our premises or at those of a supplier. We shall be released from our obligation to perform for the duration of such obstacles. Delivery times shall be extended accordingly.
  3. SOMA is entitled to make partial deliveries and provide partial services, provided that this does not unreasonably affect the customer.
  4. If shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, beginning one month after notification of readiness for shipment or acceptance.
  5. If SOMA is in default and the customer incurs damage as a result, the customer shall be entitled to demand lump-sum compensation for the delay. This shall amount to 0.3% for each full week of delay, but in total no more than 3% of the value of that part of the total delivery which cannot be used in time or in accordance with the contract as a result of the delay. SOMA shall be entitled to prove that the damage was lower. If the customer sets SOMA a reasonable deadline for performance, taking into account the statutory exceptions, and this deadline is not met, the customer shall be entitled to withdraw from the contract in accordance with the statutory provisions. Further claims arising from delayed delivery are excluded. In all other respects, Section VIII of these Terms and Conditions shall apply.
  6. The customer is obliged to provide any necessary materials, e.g., test materials, samples, or items to be provided by the customer, in a timely manner.

V. Transfer of risk, acceptance

  1. The risk shall pass to the customer in accordance with the agreed Incoterm, even if partial deliveries are made or SOMA has assumed other services, e.g., shipping costs or delivery and installation, but at the latest upon delivery to the customer.
  2. Acceptance must take place immediately on the acceptance date or, alternatively, after notification by SOMA that the goods are ready for acceptance. The customer may not refuse acceptance in the event of a minor defect. Acceptance shall be deemed to have taken place if the customer does not notify SOMA in writing of any defects within 14 days of delivery and/or the acceptance date. From this point in time, the risk shall pass to the customer at the latest. If acceptance is delayed or fails to take place due to circumstances for which SOMA is not responsible, the risk shall pass to the customer on the day of dispatch or readiness for acceptance.

VI. Retention of title

  1. SOMA retains title to the delivery item until all payments under the delivery contract have been received.
  2. SOMA is entitled to insure the delivery item at the expense of the customer against theft, breakage, fire, water, and other damage, unless the customer can prove that they have taken out such insurance themselves.
  3. The customer may not sell, pledge, or assign the delivery item as security until full payment has been made. In the event of seizure, confiscation, or other dispositions by third parties, the customer must notify SOMA immediately.
  4. In the event of breach of contract by the customer, in particular in the event of default in payment, SOMA shall be entitled to take back the delivery item after issuing a reminder and the customer shall be obliged to surrender it.

VII. Liability for defects in delivery

SOMA shall provide warranty for material defects and defects of title in the delivery to the exclusion of further claims – subject to Section VIII – as follows: 

Material defects

  1. All parts that prove to be defective as a result of circumstances occurring prior to the transfer of risk shall be repaired or replaced free of charge at SOMA's discretion. Such defects must be reported to SOMA immediately.
  2. The customer shall, after consultation with SOMA, allow SOMA the necessary time and opportunity to carry out all repairs and replacement deliveries deemed necessary by SOMA; otherwise, SOMA shall be released from liability for the consequences thereof. Only in urgent cases where operational safety is at risk or to prevent disproportionately large damage, in which case SOMA must be notified immediately, shall the customer be entitled to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from SOMA.
  3. SOMA shall bear the direct costs incurred as a result of the repair or replacement delivery, including the cost of the replacement item and shipping, provided that the complaint proves to be justified. SOMA shall also bear the costs of removal and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travel expenses, insofar as this does not place an unreasonable burden on SOMA.
  4. No warranty shall be assumed in the following cases in particular: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – unless SOMA is responsible for them.
  5. If the customer or a third party carries out improper repairs, SOMA shall not be liable for the consequences thereof.
    The same applies to changes made to the delivery item by the customer or third parties without the prior consent of SOMA.

Legal defects

  1. If the use of the delivery item leads to the infringement of industrial property rights or copyrights in the country of delivery, SOMA shall, at its own expense, procure the right for the customer to continue using the delivery item or offer a suitable solution. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Under the aforementioned conditions, SOMA shall also be entitled to withdraw from the contract. Furthermore, SOMA shall indemnify the customer against any undisputed or legally established claims of the relevant intellectual property rights holders.

VIII. Liability

  1. The customer's right to claim damages based on claims for negligence shall be limited to cases
    1. of intent or gross negligence on the part of SOMA, its legal representatives or vicarious agents,
    2. negligent breach of essential contractual obligations (essential contractual obligations are obligations whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the contractual partner regularly relies and may rely)
    3. of fraudulent concealment of defects,
    4. the assumption of a guarantee,
    5. culpable injury to life, limb, or health by SOMA, its legal representatives, or vicarious agents, or
    6. a defect in a delivery item or service for which liability for personal injury or property damage to privately used items is assumed under the Product Liability Act.
  2. In the event of a negligent breach of essential contractual obligations, the claim shall be limited to the amount of the foreseeable damage typical for the contract.
  3. Further claims for damages are excluded.
  4. If SOMA or its employees provide advice and information or make a recommendation before, during, or after a transaction or in any other context, SOMA shall only be liable for such advice, information, or recommendation if SOMA has agreed to and received a separate fee for this and the advice, information, or recommendation has been provided in writing. In this case, SOMA shall be liable for negligence up to 25% of the remuneration agreed for the consultation, etc. This limitation of liability shall not apply in the cases specified in clauses 1 a), b), d) and e).

IX. Limitation

Claims for subsequent performance, compensation for damages and expenses, and claims for defects shall become statute-barred one year after the transfer of risk (V). This shall not apply if the law prescribes longer periods, in particular in accordance with § 438 (1) No. 2 BGB (buildings and items for buildings), § 479 (1) BGB (right of recourse) and § 634 a. (1) No. 2 (construction defects) as well as in cases of injury to life, limb, and health, in the event of fraudulent concealment of defects, in the event of claims for damages under the Product Liability Act, and in the event of a breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the contractual partner may regularly rely.

X. Software use

  1. If software is included in the scope of delivery, the customer is granted a non-exclusive, non-transferable right (simple right) to use the delivered software, including its documentation. It is provided for use on the delivery item for which it is intended. Use of the software on more than one system, duplication, or transfer to third parties is prohibited. Unless mandatory statutory provisions to the contrary apply, the customer is prohibited from copying, translating, or converting the software from object code into source code.
  2. The customer undertakes not to remove manufacturer's information – in particular copyright notices – or to change it without the prior express consent of SOMA.
  3. SOMA is entitled to modify, develop, and market the software to third parties.
  4. All other rights to the software and documentation, including copies, remain with SOMA or the software supplier. The granting of sublicenses is not permitted.
  5. Cost estimates, drawings, documents, and software are the property of SOMA and enjoy full copyright protection. Unauthorized disclosure to third parties is not permitted.
  6. If open source software is included in the scope of delivery, the respective license terms apply to this software.

XI. Confidentiality

  1. The customer and SOMA undertake treat all non-public commercial and technical details that become known to them through the business relationship as confidential in accordance with the German Trade Secrets Act (GeschGehG), to ensure their confidentiality, and to use them exclusively for the performance of the contract (including the enforcement of any warranty and liability claims and the pursuit of other contractually agreed purposes).
  2. Drawings, models, design documents, samples, and similar items may not be made available to unauthorized third parties or otherwise made accessible. The reproduction of such items is only permitted within the scope of operational requirements and copyright provisions.
  3. The customer shall oblige its employees and third parties whom it employs to fulfill its contractual obligations to maintain confidentiality.
  4. The customer and SOMA undertake to immediately secure all information and data using state-of-the-art technology against unauthorized access, modification, destruction or loss, unauthorized transmission, other unauthorized processing, and other misuse.
  5. No license, reproduction, usage, or other rights may be derived from the disclosure of information of any kind. All rights, in particular the right to register property rights (e.g. patents), remain with the disclosing party.
  6. The observation, examination, dismantling, opening, disassembly or testing of products, samples or objects (reverse engineering) that have been disclosed by the disclosing party and are not publicly available on the market is not permitted without the prior written consent of the disclosing party. If written consent is granted by the disclosing party, the knowledge gained in this way may only be used for the purpose and is subject to the provisions of this agreement.

XII. Compliance

  1. Code of Conduct
    The customer and SOMA are committed to integrity, ethical conduct, and compliance in all their global business activities. The customer acknowledges the Code of Conduct for Suppliers and Business Partners of the KOSTAL Group (see https://www.kostal.com/en/downloads/contractual-documents/), complies with all the principles described therein, and endeavors to implement these standards in its business activities.
  2. Export regulations
    1. The customer shall not sell, export, or re-export, either directly or indirectly, any goods delivered under this contractual agreement that fall under Article 12g of Council Regulation (EU) No. 833/2014 to the Russian Federation or deliver them for use in the Russian Federation.
    2. The customer shall use its best efforts to ensure that the purpose of paragraph 2 (a) is not circumvented by third parties or other purchasers in its supply chain, including potential resellers.
    3. The customer shall establish and maintain an appropriate monitoring mechanism to detect conduct by third parties in the downstream supply chain, including potential resellers, that would defeat the purpose of paragraph 2 a).
    4. Any breach of paragraphs 2 a), 2 b) or 2 c) shall constitute a material breach of a material term of this Agreement and shall entitle SOMA to appropriate remedies, including, but not limited to:
      • termination of the Agreement without notice; and
      • a contractual penalty equal to 10% of the total value of the annual turnover.
    5. The customer shall immediately inform SOMA of any problems in applying paragraphs 2 a), 2 b) or 2 c), including any relevant activities of third parties that could frustrate the purpose of paragraph 2 a).

XIII. Place of performance, applicable law, place of jurisdiction

  1. The place of performance for all rights and obligations arising from the contract and for payments by the customer is Schalksmühle. All legal relationships between SOMA and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, is excluded.
  2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Lüdenscheid. This shall also apply if the customer does not have a general place of jurisdiction in Germany or if, after conclusion of the contract, the customer moves its place of business or habitual residence abroad or moves to an unknown location. SOMA shall also be entitled to bring an action at the customer's place of business.