Westfalia - COP
WESTFALIA – GENERAL TERMS AND CONDITIONS OF PURCHASE
Westfalen Mobil GmbH
General Terms and Conditions of Purchase
§ 1 General provisions and scope
(1) These General Terms and Conditions of Purchase (hereinafter, "Conditions of Purchase") shall apply to all business relations between Westfalen Mobil GmbH (hereinafter, "Westfalia", "us" or "we") and our business partners and suppliers (hereinafter, "Seller"). These Condi-tions of Purchase shall only apply if the Seller is an entrepreneur (Section 14 German Civil Code (Bürgerliches Gesetzbuch – BGB)), a legal person under public law or a special fund under public law.
(2) These Conditions of Purchase shall apply to all contracts regarding the purchase and/or the delivery of movables (hereinafter, "Goods"), regardless of whether the Seller produces the Goods itself or buys them from suppliers. These Conditions of Purchase, as amended from time to time, shall also apply to all future contracts regarding the purchase and/or the deliv-ery of movables that may be entered into with the same Seller, without us being required to refer to them again in each individual case. The same shall apply to any legal successor of the Seller.
(3) These Conditions of Purchase shall apply exclusively. Any deviating, conflicting, additional or supplementary terms of the Seller shall only become part of the contract if and to the ex-tent that their application is expressly approved by Westfalia in writing. This approval re-quirement shall apply in all cases, even if, for example, Westfalia accepts deliveries from the Seller without reservations while being aware of the Seller's terms and conditions.
(4) Individual agreements made with the Seller in any particular case (including ancillary agree-ments, additions and changes) shall in all cases take precedence over these Conditions of Purchase. A written contract or the written confirmation by Westfalia shall be decisive for the content of any such agreement.
(5) Any legally relevant declarations and notices to be issued to Westfalia by the Seller upon formation of the contract (for example, notices setting deadlines, reminders or notice of re-scission) shall only be valid if made in writing.
(6) Where the application of statutory provisions is pointed out, this is for clarification purposes only. Therefore, the statutory provisions apply even without any such clarification to the ex-tent that they are not directly modified or expressly excluded in these Conditions of Pur-chase. All mandatory rights beyond those provided for in these Conditions of Purchase to which the Seller is entitled under statutory law shall remain unaffected.
§ 2 Formation of contract
(1) Unless otherwise agreed in writing, the Seller shall provide all offers and cost estimates free of charge.
(2) Our purchase orders, as well as any changes or additions to our purchase orders, shall on-ly become binding when placed by us in writing or, if purchase orders are placed orally, by telephone or using other means of telecommunication, when duly confirmed by us in writing. Purchase orders that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written purchase orders. To the extent that a pur-chase order contains obvious mistakes, misspellings or calculation errors, it shall not be binding upon Westfalia.
(3) The Seller shall, without delay, but no later than seven working days after receipt of the pur-chase order, issue to Westfalia an order confirmation in which the price and the delivery date are expressly stated or execute the purchase order without reservations by shipping the Goods (acceptance). Should the order confirmation deviate from the purchase order, the deviations shall not be deemed agreed unless and until they are expressly confirmed by Westfalia in writing. If Westfalia and the supplier have entered into a master supply agree-ment regarding future deliveries, purchase orders (requests for delivery) placed by West-falia shall be binding if not objected to by the supplier within seven working days after re-ceipt.
(4) If it turns out during the performance of a contract that deviating from the originally agreed specifications is necessary or advisable, the supplier shall so advise us without delay. Westfalia shall inform the supplier of whether it wishes the supplier to make changes to the original purchase order and, if so, what changes. If, as a result of such changes, there is a change in the costs incurred by the supplier in performing the contract, both Westfalia and the supplier shall have the right to demand an appropriate adjustment of the agreed prices.
§ 3 Delivery date or period and default in delivery
(1) The delivery must correspond to the purchase order in terms of execution, scope and scheduling. The delivery date or delivery period stated by us in the purchase order shall be binding. Delivery periods shall commence on the day the purchase order is issued. Compli-ance with the delivery date or delivery period shall be determined by the date on which the Goods are received by us. If no delivery date or delivery period has been stated in the pur-chase order or otherwise agreed, the delivery period shall be 3 weeks from the date of for-mation of the contract. If the Seller expects that it will be unable to adhere to the agreed de-livery date or delivery period, the Seller shall be obliged to notify us without delay in writing, stating the reasons for the delay and its expected duration.
(2) If the Seller fails to perform its obligations or does not perform them within the agreed deliv-ery period, or if the Seller is in default, our rights, in particular those to rescind the contract and claim damages, shall be determined in accordance with the statutory provisions. This shall not affect the provisions of paragraph (3) below.
(3) In the event of default of the supplier, Westfalia may demand a contractual penalty in an amount equal to 0.5% of the net order value for each commenced week of delay, but not more than 5% of the net order value in total. This shall not affect any further statutory claims for damages of Westfalia. The contractual penalty shall be credited against the damage caused by default which the supplier is liable to compensate. Acceptance of a late delivery shall not constitute a waiver of claims for damages.
(4) Delivery before the agreed delivery date shall only be permitted with our prior written con-sent. Westfalia may return any Goods that are delivered early at the supplier's expense or store them at the supplier's expense until the agreed delivery date.
(5) Partial deliveries and excess or short deliveries are not permitted, to the extent not other-wise agreed in writing.
§ 4 Performance, delivery, passing of risk and default of acceptance
(1) Without our prior written consent, the Seller shall not be authorised to have any or all of the obligations owed by the Seller performed by a third party (for example, a subcontractor). This shall also apply to the performance of obligations for which the supplier's business is not prepared. The transfer of orders by subcontractors to another third party shall also re-quire our prior written consent. Westfalia shall give its consent if there is no apparent factual reason against doing so. The supplier shall select the subcontractor with care and satisfy it-self before instructing the subcontractor that the latter will be able to comply with all obliga-tions of the supplier that have been assumed in the agreement with Westfalia. The Seller shall bear the procurement risk in relation to the products or services to be supplied by the Seller unless the product is made to specification.
(2) In Germany, delivery shall be free to the place specified in the purchase order. If no destina-tion is specified and nothing else has been agreed, delivery shall be made to our registered office in Rheda-Wiedenbrück. The respective place of destination shall also be the place of performance (obligation to be performed at the creditor's place).
(3) Each delivery shall be accompanied by a delivery note which contains the date (of issue and shipment), the order and materials numbers, a list of the batches supplied, the description of the Goods, the quantities supplied and the weight. Any failure to comply with these docu-mentation requirements shall constitute a material breach of contract by the supplier. The supplier shall be liable to compensate us for any damage suffered by us as a result of such non-compliance, unless the supplier is not responsible for the breach of duty. If the delivery note is not included or is incomplete, Westfalia shall not be responsible for any resulting de-lay in processing and payment.
(4) The supplier shall bear the risk of accidental loss or destruction or accidental deterioration of the Goods until their acceptance by us. If the supplier is obliged to install or assemble the Goods in our business premises, the risk shall not pass to us until the Goods have been put into service and are ready for operation.
(5) We shall only be in default of acceptance upon fulfilment of the statutory requirements. How-ever, the Seller must expressly offer the performance of its obligations to us even if a specif-ic or determinable calendar date or calendar period has been agreed for an act to be per-formed or cooperation to be provided by us (for example, provision of materials). If the con-tract regards a non-fungible item to be manufactured by the Seller (product made to specifi-cation), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for our failure to provide such cooperation.
§ 5 Prices and terms of payment
(1) The prices stated in the purchase order shall be binding. All prices shall be understood to include statutory VAT unless the VAT is stated separately.
(2) The supplier's invoices shall state the order information (order number, order date, quantity and price), the number of each single item (batches) and the delivery note number. Other-wise, the invoices cannot be processed and, therefore, will be deemed not received. Copies of invoices shall be marked as duplicates.
(3) Unless otherwise agreed in the individual case, the price shall include all services and ancil-lary services provided by the Seller (for example, assembly or installation), as well as all in-cidental costs (for example, proper packaging and transport costs, including transport in-surance and third-party liability insurance, where applicable). At our request, the Seller shall take back the packaging material.
(4) Payment shall be made upon complete acceptance of the Goods and receipt of the invoice within 14 days with a 3% discount or within 30 days net. Payment shall be made subject to review of the invoice. In the event of defective delivery, Westfalia shall have the right to with-hold payment until the delivery obligations have been properly performed, without Westfalia forfeiting its right to rebates, discounts or similar price reductions. To the extent that the supplier is obliged to provide materials tests, inspection reports, quality documents or other records, the receipt of those records shall be a further prerequisite for the acceptance of the Goods. The time allowed for payment shall not commence until all the defects have been ful-ly remedied. If the Goods are delivered early, the time allowed for payment shall not com-mence until the agreed delivery date.
(5) We shall not be liable to pay interest from the due date. This provision shall not affect the Seller's claim for payment of default interest. We shall only be in default upon fulfilment of the statutory requirements. In any case, however, a reminder from the Seller shall be required.
(6) We shall be entitled to rights of set-off and retention and to the defence of non-performance of the contract to the extent provided by law. We shall, in particular, be entitled to withhold any payments due as long as we have claims against the Seller arising from incomplete or defective performance.
(7) Ownership of the Goods shall be transferred to us free of any encumbrances when the Goods are paid for, at the latest. All payments shall be made to the supplier only. Extended or prolonged retention of title arrangements shall not be permitted. Counterclaims shall only entitle the supplier to a set-off if they have been established in a judgment that cannot be ap-pealed against or are recognised or undisputed. The supplier may only assert a right of re-tention if its counterclaim is based on the same contractual relationship.
§ 6 Confidentiality and items provided
(1) The supplier shall be obliged for an unlimited period of time to maintain the confidentiality of all information related to Westfalia that is designated as confidential or can be identified as a trade or business secret due to other circumstances and, except where required for the de-livery to be made to Westfalia, shall not record, disclose or exploit any such information. By entering into suitable contractual arrangements with the employees and agents working for it, the supplier shall ensure that these persons, too, refrain at least for the duration of the business relationship from any exploitation, disclosure or unauthorised recording of such trade and business secrets for their own purposes.
(2) We reserve all property rights and copyrights in any illustrations, plans, drawings, calcula-tions, instructions for execution, product descriptions and other documents. Such docu-ments shall be used exclusively for the obligations to be performed under the contract and shall be returned to us upon completion of the contract. The documents must be kept secret from third parties, also after the contract has ended. The duty of confidentiality shall only ex-pire if and to the extent that the knowledge that is contained in the documents provided has become generally known.
(3) The preceding provision shall apply correspondingly to any substances and materials (for example, software, finished and semi-finished products) and to any tools, models, samples and other items provided by us to the Seller for manufacturing purposes. As long as such items are not processed, they shall be stored separately and insured to the usual extent against destruction and loss at the Seller's expense.
(4) Any processing, mixing or combination by the Seller of items provided shall be carried out on our behalf. If the items provided are processed, mixed or combined with items owned by third parties and these third parties retain their title in the process, we shall acquire co-ownership of the new item in proportion to the ratio of the value of the item provided by us to the other items.
§ 7 Warranty and claims for defects
(1) The statutory provisions shall apply to our rights in the event of defects in the quality of the Goods or defects in title to the Goods and in the event of other breaches of duty by the Sell-er, except to the extent otherwise provided below.
(2) According to the statutory provisions, the Seller is, in particular, liable to ensure that the Goods are of the agreed quality at the time the risk passes to us. Product descriptions that are part of the subject matter of the respective contract, in particular because they have been mentioned or referred to in our purchase order, or which have been included in the contract in the same manner as these Conditions of Purchase shall in any case be deemed agreements as to the quality of the Goods. It shall make no difference in this context wheth-er the product description has been provided by us, by the Seller or by the manufacturer.
(3) The supplier further warrants that the items delivered correspond to the agreed specifica-tions, the latest state of technology, the applicable legal provisions and the regulations and guidelines issued by public authorities, employers' liability insurance associations and pro-fessional associations. In particular, the supplier must comply with the provisions of the EU Chemicals Regulation REACH. The supplier must inform Westfalia without delay in writing if the supplier has any concerns about the purchase order being performed as requested by us.
(4) Notwithstanding Section 442 (1) sentence 2 German Civil Code, we shall be entitled to unre-stricted claims for defects even if the defect remained unknown to us at the time of formation of the contract due to gross negligence.
(5) The statutory provisions (Sections 377, 381 German Commercial Code (Han-delsgesetzbuch – HGB)) shall apply to the commercial obligations to inspect and give notice of defects with the following proviso: our obligation to inspect shall be limited to defects that become apparent during the examination for visible defects, also of the delivery documents, carried out as part of our inspection of incoming Goods and during the quality control per-formed by us by means of random checks (for example, damage sustained in transit, deliv-ery of the wrong items and short deliveries). To the extent that acceptance has been agreed, there shall be no obligation to inspect. In addition, said obligation shall depend on whether and to what extent an inspection is feasible in the proper course of business, taking into account the circumstances of the individual case.
a) The above shall not affect our obligation to give notice of defects that are discovered later. If a defect is discovered during such examinations or at a later point in time, Westfalia shall, to the extent feasible in the proper course of business, so advise the supplier without delay, within 5 (five) working days after the examination for obvious defects and within 14 (fourteen) days after the discovery for hidden defects.
(6) The costs incurred by the Seller for the purposes of such examinations and repairs shall be borne by the Seller even if it turns out that a defect actually did not exist. This shall not affect our liability for damages in the event of unjustified requests for rectification of defects; how-ever, we shall only be liable in this respect if we recognised, or were grossly negligent in not recognising, that there was no defect.
(7) If the Seller does not comply with its obligation to provide subsequent performance by reme-dying the defect (repair) or, at our option, by delivering an item that is free from defects (re-placement delivery) within a reasonable period of time set by us for this purpose, we may remedy the defect ourselves and ask to be reimbursed by the Seller for the necessary ex-penses and/or demand an appropriate advance payment. If subsequent performance by the Seller (repair or replacement delivery) has failed or is unreasonable for us (for example, due to particular urgency or because operational safety is at risk or there is a risk of dispropor-tionate damage), the setting of a deadline can be dispensed with; in this case, the Seller shall be notified without delay – if possible, in advance.
(8) If the supplier fulfils its subsequent performance obligation by making a replacement deliv-ery, the limitation period shall commence anew for the Goods supplied as a replacement up-on acceptance of these Goods.
(9) Suppliers of Goods for which spare parts are needed shall be obliged to supply Westfalia upon expiry of the limitation period for another ten years with the required spare parts, ac-cessories and tools.
§ 8 Recourse to the supplier
(1) In addition to claims for defects, we shall be entitled without restriction to our statutory re-course claims within the supply chain (recourse to the supplier under Section 445a German Civil Code). In particular, we may demand that the Seller provide the same type of subse-quent performance (repair or replacement delivery) that we also owe our own buyer in the individual case. This shall not result in a restriction of our statutory right to choose (Sec-tion 439 (1) German Civil Code).
(2) Before we acknowledge or fulfil a claim for defects asserted by our buyer (including reim-bursement of expenses pursuant to Sections 478 (3), 439 (2) German Civil Code), we shall notify the Seller and, providing a brief description of the facts, ask for a statement in writing. If that statement is not provided within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed owed to our buyer; in this case, the Seller shall have the burden to prove the contrary.
(3) Our claims arising from recourse to the supplier shall also apply if the Goods were further processed by us or any of our buyers, for example, by being installed in another product, before they were sold to a consumer.
§ 9 Product liability
(1) The supplier shall be obliged to indemnify Westfalia at our first request against any liability to third parties and/or against any third-party claims arising from the manufacture, delivery, storage or use of the Goods supplied. The supplier shall further be obliged to reimburse Westfalia for any payments made in settlement of justified claims. The indemnification and reimbursement obligations shall not apply if the underlying event is demonstrably due to gross negligence or wilful misconduct on the part of Westfalia or of any employee, repre-sentative, person employed in the performance of Westfalia's obligations or company affiliat-ed with Westfalia. The supplier shall be obliged to notify us without delay of any actions brought against the supplier or claims asserted and provide all the related documentation at our request. This shall not affect any further claims of Westfalia.
(2) In the cases set out in paragraph (1) above, the supplier shall bear all costs and expenses, including the cost of any legal action. In particular, the supplier shall reimburse us for any expenses that we incur as a result of or in connection with any preventive measures, espe-cially product warnings, an exchange of products or product recalls, which Westfalia takes to avoid being held liable under product liability law. The costs and expenses to be reim-bursed shall also include the cost of a precautionary product recall to the extent that, after a due assessment of all circumstances, Westfalia considers the product recall to be appropri-ate for the protection of our customers or of external third parties. The supplier shall reim-burse Westfalia for the cost of such a product recall even after the expiry of the warranty period if we carry out the product recall on the basis of an official order or in order to avert danger to life and limb of the users of the product or external third parties. Where possible and not unreasonable for Westfalia, Westfalia shall advise the supplier of the contents and scope of the measures to be taken and give the supplier the opportunity to comment there-on.
(3) To the extent that Westfalia is held liable by third parties due to a product defect of the item delivered by the supplier which gives rise to an obligation to provide compensation, the sup-plier shall, in addition to the obligation under paragraph (1) above, actively support us in the defence against such claims. To this end, the Contractor shall store all records and docu-ments relating to the delivery for a minimum period of 15 (fifteen) years from the receipt of the delivery by us and furnish them to us at our first request.
(4) The supplier must, at its own expense, obtain insurance against all risks arising from prod-uct liability in an adequate amount, but at least in the amount of EUR 5 million, for personal injury, property damage and financial losses (including insurance against the cost of product recalls) for each individual case of damage and, upon request, shall provide Westfalia with proof by presenting its insurance policy. The insurance cover shall be maintained for an ap-propriate period of time following the most recent delivery to us.
§ 10 Third-party property rights
(1) The supplier warrants that the items delivered by it are free from third-party rights and that their delivery or their use in accordance with the contract, also in combination or interaction with other items, does not infringe any patents or other industrial property rights of third par-ties in the Federal Republic of Germany and the European Union. In the event of an in-fringement, the Seller shall indemnify us against all claims asserted against us by third par-ties due to the property right infringement. If the delivery or the services provided by the supplier infringe any patents or other industrial property rights of third parties, the supplier shall be obliged to ensure that the infringement no longer exists by procuring the relevant rights, or by modifying the delivery item or supplying an altered delivery item, to the extent that this is not unreasonable for us.
(2) The preceding paragraph shall not apply to the extent that the Seller has manufactured the Goods according to drawings, models or other specifications provided by us and does not know, or need not know in connection with the products developed by it, that industrial prop-erty rights are thereby infringed.
(3) The contracting parties shall notify each other without delay of any risks of infringement that become known and of any alleged cases of infringement and give each other the opportunity to counteract corresponding claims by mutual agreement.
(4) To the extent that licence fees are payable for using the delivery item in accordance with the contract, also in combination or interaction with other items, these fees shall be borne by the supplier.
§ 11 Prohibition of substances under REACH/RoHS
(1) The Seller shall be responsible for ensuring that the Goods comply with the provisions of Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (hereinafter, "REACH Regulation"). The substances contained in the Goods have been registered, to the extent required under the provisions of the REACH Regulation. The Seller shall comply with the permitted maximum concentrations of 0.1% weight by weight for substances of the candidate list (SVHC list) pursuant to Article 33(1) REACH Regulation in its products and their packaging. Should the Seller determine that its products require a notification to be made pursuant to Article 33, it shall so advise the pur-chaser without waiting for a request. Furthermore, the Seller shall communicate to us upon request the information referred to in Article 33 REACH Regulation (declaration of conformi-ty).
(2) The Seller shall be responsible for ensuring that the Goods comply with the provisions of the RoHS Directive 2011/65/EU of the European Parliament and of the Council in its current version if the Goods fall within the scope of said Directive. The substances contained in the Goods shall comply with the permitted maximum concentration values tolerated by weight in homogeneous materials of <0.01% for cadmium, lead, mercury, hexavalent chromium (Cr6+), polybrominated biphenyls (PBB) and <0.1% for polybrominated diphenyl ethers (PBDE) pursuant to Annex II to the Directive.
a) If the delivery items contain substances listed in the "candidate list of substances of very high concern" ("SVHC list") pursuant to the REACH Regulation, the Seller is un-der obligation to give notice of this fact without delay. This shall also apply if substanc-es previously not listed are newly included in said list during an ongoing supply rela-tionship. The list, as amended from time to time, is available at http://echa.europa.eu/candidate-list-table.
b) The Seller shall be obliged to indemnify us against any liability in connection with the supplier's failure to comply with the above-mentioned Regulations and/or compensate us for any damage sustained by us due to or in connection with the Seller's failure to comply with the above-mentioned Regulations.
c) The Seller shall send us declarations of conformity regarding REACH/RoHS in relation to its products without waiting for a request or make such declarations available for download.
§ 12 Lapse of time
(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, to the extent not otherwise provided in these Conditions of Pur-chase.
(2) Notwithstanding Section 438 (1) no. 3 German Civil Code, the general limitation period for claims for defects shall be 3 years from the passing of risk. To the extent that acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limita-tion period shall apply correspondingly to claims arising from defects in title, it being under-stood that the statutory limitation period for third-party claims for surrender that are based on a right in rem (Section 438 (1) no. 1 German Civil Code) shall remain unaffected; fur-thermore, under no circumstances shall claims arising from defects in title become time-barred as long as the third party may still assert its right against us, in particular because it has not yet become time-barred.
(3) The limitation periods under sales law, including the above extension, shall – within the limits defined by law – apply to all contractual claims for defects. To the extent that we are addi-tionally entitled to non-contractual claims for damages due to a defect, such claims shall be subject to the regular statutory limitation rules (Sections 195, 199 German Civil Code), un-less the application of the limitation periods under sales law leads to a longer limitation period in the individual case.
§ 13 Force majeure and similar circumstances
(1) If Westfalia is prevented by an event of force majeure, as described in paragraph (2) below, from performing its contractual obligations, in particular from taking delivery of the Goods, Westfalia shall be released from its obligation to perform for the duration of the impediment and a reasonable start-up period without being liable towards the supplier for damages. The same shall apply if it is unreasonably difficult or temporarily impossible for Westfalia to per-form its obligations as a result of unforeseeable circumstances for which we are not re-sponsible, in particular as a result of official measures (regardless of whether they are law-ful), energy shortage, lack of means of transport, power outage, failure of telecommunication connections or significant operational disruptions.
(2) Force majeure means all unusual, unforeseeable events that are independent of the parties' will and influence, in particular, natural disasters, terrorist attacks, political unrest, armed conflicts, blockades, sabotage, embargoes, strike, lockout and other forms of industrial ac-tion.
(3) We shall promptly inform the supplier of the events that have occurred.
(4) We shall have the right to rescind the contract if an impediment such as those listed in para-graph (1) above lasts for more than two months and performance of the contract is no long-er of interest to us as a result of the impediment. At the request of the supplier, we shall de-clare after the aforesaid period has expired whether we will make use of our right to rescind the contract or whether we will take delivery of the Goods within a reasonable period of time.
§ 14 Choice of law and place of jurisdiction
(1) These Conditions of Purchase and all legal relations between us and the Seller shall be gov-erned by the law of the Federal Republic of Germany, without regard to any international or supranational systems of (contract) law, in particular without regard to the United Nations Convention on Contracts for the International Sale of Goods. The requirements and effects of any retention of title arrangement shall be subject to the law at the respective place of storage of the item to the extent that the present choice of law in favour of German law is not permitted or is invalid according to that law.
(2) If the Seller is a merchant (Kaufmann) within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive, including in-ternational, place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Rheda-Wiedenbrück, Germany. However, we may also file suit at the place of performance of the delivery obligation.
Westfalen Mobil GmbH