Westfalia - COS
WESTFALIA – GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Westfalen Mobil GmbH
General Terms and Conditions of Sale and Delivery
§ 1 General provisions and scope
(1) The present General Terms and Conditions of Sale and Delivery (hereinafter, "Conditions of Sale") shall apply exclusively in national and international business transactions with enter-prises (Section 14 German Civil Code (Bürgerliches Gesetzbuch – BGB)), legal persons under public law and special funds under public law (hereinafter, "Buyer").
(2) These Conditions of Sale shall apply to all contracts regarding the sale and/or the delivery of movables (hereinafter also, "Goods"), regardless of whether we produce the Goods our-selves or buy them from suppliers (Sections 433, 650 German Civil Code). These Condi-tions of Sale, as amended from time to time, shall also apply to all future contracts regarding the sale and/or the delivery of movables that may be entered into with the same Buyer, with-out us being required to refer to them again in each individual case. The same shall apply to any legal successor of the Buyer.
(3) Our Conditions of Sale shall apply exclusively. Any deviating, conflicting, additional or sup-plementary terms of the Buyer shall only become part of the contract if and to the extent that their application is expressly approved by us in writing. This approval requirement shall ap-ply in all cases, even if, for example, we carry out a delivery to the Buyer without reserva-tions while being aware of the Buyer's general terms and conditions.
(4) Individual agreements made with the Buyer in any particular case (including ancillary agreements, additions and changes) shall in all cases take precedence over these Condi-tions of Sale. A written contract or our written confirmation shall be decisive for the content of any such agreement.
(5) Any legally relevant declarations and notices to be issued to us by the Buyer upon formation of the contract (for example, notices setting deadlines, notices of defects, notice of rescis-sion or notice to reduce the purchase price) 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 Sale. Rights beyond the scope of these Conditions of Sale to which the Buyer is entitled under statutory law shall remain unaffected.
§ 2 Formation of contract
(1) Our offers and cost estimates are subject to change and non-binding. This shall also apply if we provide the Buyer with catalogues, technical documentation (for example, drawings, plans, computations, calculations or references to DIN standards), other product descrip-tions or documents (also in an electronic format) in respect of which we reserve our proper-ty rights and copyrights. Such items shall not constitute an agreement on, or guarantee of, an according quality of the delivery or service. In the event that a binding agreement on the target quality of the delivery or service has been made with the Buyer, changes by us shall continue to be permitted to the extent that such changes are made because of mandatory legal requirements and that they are not unreasonable for the Buyer. We reserve the right to make changes to the design and form of the Goods to the extent that such changes are in-significant and not unreasonable for the Buyer. In the event that changes are unreasonable, the Buyer shall have the right to rescind the contract. All further claims shall be excluded.
(2) The placement of a purchase order for the Goods by the Buyer shall constitute a binding offer of contract. Unless otherwise stated in the purchase order, we shall have the right to accept that offer of contract within three weeks after receipt by us. Purchase orders shall not become binding until confirmed by us by means of a written order confirmation or through the delivery of the Goods to the Buyer. Order confirmations that are generated us-ing automatic devices and, therefore, do not contain a name and signature shall be deemed written order confirmations. If we do not respond to offers, purchase orders, requests or other declarations from the Buyer, this shall only be deemed approval if an express written agreement to this effect has been made. To the extent that an order confirmation contains obvious errors, misspellings or calculation mistakes, it shall not be binding upon us.
§ 3 Delivery period and default in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the pur-chase order. Delivery periods must be agreed in writing. Delivery periods shall not be bind-ing unless they have been expressly designated as binding.
(2) The delivery period shall commence when we dispatch the order confirmation, but not be-fore all documents, permits and approvals that may have to be obtained by the Buyer have been provided in full, the agreed down-payment, if any, has been received and the Buyer has timely and properly provided any further cooperation owed.
(3) An agreed delivery period shall be deemed met if, by the time the delivery period expires, we have made the Goods available at the place of delivery or, in the event of a sale including shipment to a place other than the place of performance, have handed the Goods over to the person in charge of carrying out the transport or the Buyer has announced that it will re-fuse acceptance. Each delivery shall be conditional upon us being timely and properly sup-plied by our own suppliers.
(4) If we are unable to meet binding delivery periods for reasons for which we are not responsi-ble (unavailability of the products or services), the agreed delivery periods shall be extended for the duration of the hindrance. We shall so advise the Buyer without delay, stating at the same time the expected duration of the extended delivery period. If the products or services continue to be unavailable throughout the extended delivery period, either contracting party may rescind the contract, in whole or in part; any consideration already paid by the Buyer shall be paid back by us without delay. A delay in delivery shall only entitle the Buyer to re-scind the contract if we are responsible for the delay.
(5) In particular events of force majeure and other disruptions for which we are not responsible, such as war, terrorist attacks or import and export restrictions, including those affecting our suppliers, shall be deemed cases of unavailability of the products or services within the meaning of paragraph (4) above. This shall also apply if we and/or our suppliers are affected by industrial action. If we are not timely supplied by our own supplier, this shall be deemed another case of unavailability of the products or services, provided that we have entered in-to a matching cover transaction. Our statutory rights of rescission and termination and the statutory provisions regarding the reversal of the contract in the event that the obligation to perform is excluded (for example, if performance and/or subsequent performance is impos-sible or unreasonable) shall remain unaffected. The Buyer's rights of rescission and termi-nation under clause 8 of these Conditions of Sale shall also remain unaffected.
§ 4 Delivery, passing of risk, acceptance and default of acceptance
(1) Delivery shall be ex warehouse, which shall also be the place of performance.
(2) We shall have the right to make partial deliveries unless this is unreasonable for the Buyer.
(3) The risks of accidental loss or destruction and of accidental deterioration of the Goods shall pass to the Buyer upon the Goods being handed over, at the latest. In the event of a sale in-cluding shipment to a place other than the place of performance, however, the risks of acci-dental loss or destruction and of accidental deterioration of the Goods and the risk of delay shall already pass upon the Goods being handed over to the forwarding agent, the carrier or such other person or institution as may have been entrusted with the execution of the ship-ment. This shall also apply in the event of partial deliveries. To the extent that acceptance has been agreed in writing, acceptance shall be decisive for the passing of risk. The statuto-ry provisions of the law on contracts for work and services shall apply correspondingly to an acceptance agreed in writing. Default of acceptance by the Buyer shall be deemed equivalent to handover or acceptance.
(4) If the Buyer is in default of acceptance or fails to provide its cooperation or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall have the right to claim compensation for the resulting damage, including additional expenses (for example, storage costs). To this end, we shall charge lump-sum compensation in an amount equal to 0.5% of the net price of the relevant delivery per day of default, but not more than 5% of the net price in total, from the deadline for delivery or, where a deadline for delivery does not exist, from the date of notification that the Goods are ready for shipment. Any statutory claims and the right to furnish proof of further damage shall remain unaffected; the lump-sum compensation within the meaning of the second sentence of this paragraph (4) shall, however, be credited against further-reaching monetary claims.
(5) The Buyer shall be obliged to examine the Goods upon delivery for externally visible dam-age and to report the damage, if any, to the transport company carrying out the delivery and ask the latter for an according confirmation in writing. If the Buyer fails to comply with this obligation, the Buyer shall be liable to compensate us for any damage suffered as a result of such failure.
(6) Without prejudice to the Buyer's claims for defects, the Buyer must take delivery of the Goods supplied even if they contain minor defects. The Buyer shall further be obliged to take delivery of the Goods supplied if the Goods provided exceed or fall short of the quantity ordered by up to 5% or if the Goods provided are delivered early, provided the delivery does not take place significantly ahead of schedule.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in writing in any particular case and subject to the provisions of paragraph (2) below, our prices in EURO valid at the time of formation of the respective con-tract shall apply, ex warehouse, plus statutory VAT.
(2) If, according to the contractual agreements, the Goods are to be delivered on a date that is more than four months after the date of formation of the contract, the purchase price shall be adjusted to reflect the percentage change in the list prices applicable to the seller for the vehicle, any special equipment and the transfer costs plus statutory VAT during the period up to the delivery date.
(3) In the event of a sale including shipment to a place other than the place of performance, the Buyer shall bear the transport costs ex warehouse and the cost of any transport insurance requested by the Buyer against the risks specified by the Buyer. Any customs duties, fees, taxes and other public charges shall also be borne by the Buyer.
(4) The purchase price shall be due and payable within 14 days from invoicing and delivery or acceptance of the Goods. For contracts with a delivery value of more than EUR 50,000.00, we may, however, demand a down-payment of 20 % of the purchase price. The down-payment shall be due and payable within 14 days from invoicing.
(5) A payment shall be deemed made at the point in time when we are able to dispose of the amount. Upon expiry of the aforesaid time allowed for payment, the Buyer shall be in default. During the period of default, the purchase price shall be subject to interest at the statutory default interest rate applicable from time to time. We reserve the right to assert further claims for damages. If the Buyer is a merchant, our claim for commercial default interest
(Section 353 German Commercial Code (Handelsgesetzbuch – HGB)) shall remain unaf-fected.
(6) The Buyer shall only be entitled to rights of set-off or retention to the extent that the Buyer's claim is undisputed or has been established in a judgment that cannot be appealed against. The Buyer may only assert a right of retention if its counterclaim is based on the same con-tractual relationship. In the event that the delivery contains defects, clause 7(6) below shall remain unaffected.
(7) If the Buyer defaults on a payment, we shall have the right to demand immediate payment of all claims arising from the business relationship, even if those claims are not yet due.
(8) If it becomes apparent after the contract has been entered into that our claim for payment of the purchase price is jeopardised by the Buyer's lack of ability to pay (for example, due to an application to initiate insolvency proceedings), we may refuse performance and – after setting a deadline, if necessary – rescind the contract in accordance with the statutory pro-visions (Section 321 German Civil Code). In the case of contracts regarding the manufac-ture of non-fungible items (custom-made items), we may immediately give notice of rescis-sion; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.
(9) Notwithstanding Section 195 German Civil Code, our claims for payment of the purchase price shall be time-barred after five years.
§ 6 Retention of title
(1) We shall retain title to the Goods sold until all our current and future claims arising from the purchase agreement and any on-going business relationship (hereinafter, "Secured Claims") have been paid in full.
(2) Until the Secured Claims have been paid in full, the Goods that are subject to this retention of title clause may neither be pledged to third parties nor transferred by way of security. Fur-thermore, the Buyer shall have no right to make any other dispositions that would jeopardise the Goods to which we retain title. The Buyer must notify us without delay in writing if and to the extent that any of the Goods owned by us are seized by third parties. Furthermore, the Buyer must provide all necessary information, inform the third party of our ownership rights in the Goods to which title is retained and cooperate with any measures taken by us to pro-tect the Goods that are subject to this retention of title clause .
(3) The Buyer shall be obliged to handle the Goods that are subject to this retention of title clause with care for as long as title is retained. The Buyer shall, in particular, be obliged to adequately insure the Goods at its own expense at replacement value against damage by fire, water and theft. The Buyer hereby assigns to us all claims for compensation arising out of such insurance. We hereby accept this assignment. If such an assignment is not permit-ted, the Buyer hereby instructs its insurer irrevocably to make payments, if any, only to us. This shall not affect any further claims that we may have. The Buyer must provide us with proof of this insurance cover upon request.
(4) If the Buyer breaches the contract, in particular if the Buyer fails to pay the purchase price when due, we may rescind the contract in accordance with the statutory provisions and/or demand based on this retention of title clause that the Goods be returned. The request that the Goods be returned does not automatically include notice of rescission; instead, we shall have the right to merely demand that the Goods be returned whilst reserving the right to re-scind the contract. If the Buyer fails to pay the purchase price when due, we may only exer-cise the aforesaid rights if we have first set a reasonable deadline for payment by the Buyer to no avail or if setting such a deadline can be dispensed with according to the statutory provisions.
(5) The Buyer shall be authorised, subject to revocation, to resell and/or process the Goods that are subject to this retention of title clause in the ordinary course of business. In this case, the following provisions shall apply additionally:
a) The retention of title shall also apply to the products created by processing, mixing or combining our Goods, at their full value, and we shall be deemed the manufacturer of those products. If the Goods are processed, mixed or combined with goods owned by third parties and these third parties retain their title in the process, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same provisions that apply to the Goods supplied subject to this retention of title clause shall also apply to the newly created product.
b) The Buyer hereby assigns to us as security any claims against third parties arising out of the resale of the Goods or of the product to the extent of the amount invoiced, including value added tax, along with all ancillary rights, in total or in the amount of our co-ownership interest pursuant to the preceding paragraph, as applicable. We hereby accept this assignment. The Buyer's obligations specified in paragraph (2) above shall also apply with regard to the assigned claims.
c) In addition to us, the Buyer shall also remain authorised to collect the claim on a trust basis, subject to revocation. We undertake not to collect the claim as long as the Buy-er meets its payment obligations to us, the Buyer is not in default of payment, no appli-cation to open insolvency proceedings has been filed and the Buyer's ability to pay is not otherwise impaired. If this is the case, however, we may demand that the Buyer disclose to us the assigned claims and the respective debtors, that it provide all the in-formation needed to collect the claims, hand over the related documentation and that it notify the debtors (third parties) of the assignment.
d) If the realisable value of the security provided exceeds our claims by more than 10 %, we shall, at the request of the Buyer and at our discretion, release part of that securi-ty.
(6) In the event that Goods are delivered to destinations with other legal systems where the re-tention of title provisions set out in this clause are not legally valid, the Buyer hereby grants us an equivalent security interest. If further measures are required for this purpose, the Buyer shall do whatever is necessary to grant us such a security interest without delay. The Buyer shall assist with all measures required for, and conducive to, the validity and enforce-ability of such security interests.
§ 7 Buyer's claims for defects
(1) The Buyer's rights arising from defects shall be contingent upon the Buyer performing its statutory obligations to inspect and give notice of defects (Sections 377 and 381 German Commercial Code), in particular, upon the Buyer inspecting all Goods supplied without delay upon receipt and providing us without delay with written notice of any obvious defects and of defects that were identifiable during such inspection. The Buyer must give written notice of any hidden defects without delay after they have been discovered. In order for such notice to be deemed given without delay within the meaning of the first sentence above, it must be given within 8 working days; this deadline is met if we receive the notice before the expiry of the aforesaid period. If the Buyer fails to carry out a proper inspection and/or to give notice of defects, we shall not be liable for the defect. When reporting defects to us, the Buyer must provide a written description of the defects.
(2) If any notice of defects is unjustified, we may demand to be compensated by the Buyer for the expenses incurred, unless the Buyer proves that the unjustified notice of defects was not due to wilful misconduct or negligence on the part of the Buyer.
(3) The Buyer shall have no right to demand subsequent performance (repair or replacement delivery) if there are only minor deviations that are not unreasonable for the Buyer.
(4) If the Goods contain defects, we may, by way of subsequent performance, remedy the de-fect or, at our option, deliver Goods that are free from defects.
(5) If the Goods are not at the place of delivery, the Buyer shall bear all additional costs incurred by us as a result of this fact when remedying defects unless the Goods were relocated in accordance with their agreed use.
(6) Rights arising from defects shall not exist:
‒ in the event of natural wear and tear;
‒ in the event of defects resulting from improper handling (for example, other than as described in the operating manual), improper storage or maintenance, or excessive strain or use after the risk has passed;
‒ in the event of defects resulting from force majeure, from extraordinary external im-pacts that are not intended according to the contract, or from the Goods being used in a manner which does not correspond to their contractually intended or customary use.
(7) We shall not be liable for defects which are due to the Buyer demanding a manner of pro-cessing or choice of materials that deviates from our specifications.
§ 8 Liability
(1) We shall be liable without limitation, on whatever legal grounds, in the event of a breach of guarantee or death, bodily injury or damage to health. The same shall apply to wilful miscon-duct and gross negligence on the part of (members of) boards or other corporate bodies and executive employees. To the extent permitted by law, all liability for persons employed in a non-executive function in the performance of our obligations (Section 278 German Civil Code) shall be excluded.
(2) Subject to paragraph (1) above, we shall only be liable for simple negligence if cardinal obli-gations are violated. Cardinal obligations are obligations the fulfilment of which is an indis-pensable prerequisite for the proper performance of the contract and the observance of which is generally relied upon – and may be relied upon – by the other party to the contract. In this case, however, our liability shall be limited to compensation for the foreseeable, typi-cal damage.
(3) The limitations of liability resulting from paragraph (2) above shall not apply to the extent that we have fraudulently concealed a defect or that we have given a guarantee for the quality of the Goods. The same shall apply to any claims of the Buyer under the German Product Lia-bility Act (Produkthaftungsgesetz).
(4) If we fail to meet a deadline for delivery, our liability for damage suffered by the Buyer as a result of the delay shall, subject to paragraph (1) above, be limited to a maximum of 5 % of the agreed net price. The contracting parties may assert further claims for damages or prove that the amount of damage actually suffered was smaller.
(5) The Buyer may only rescind or terminate the contract due to a breach of duty which does not constitute a defect if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Lapse of time
The limitation period for the Buyer's claims for defects shall be 12 months and shall commence upon delivery of the Goods. The limitation period shall further commence upon the Buyer default-ing on its obligation to accept the Goods. The above limitation period shall also apply to tort claims which are based on a defect of the Goods. The limitation period shall not start anew as a result of subsequent performance (repair or replacement delivery). In the cases referred to in clause 8(2) above, the statutory limitation rules shall apply instead.
§ 10 Confidentiality
(1) The Buyer shall be obliged for an unlimited period of time to maintain the confidentiality of all information about us that becomes available to the Buyer and is designated as confidential or can be identified as a trade or business secret due to other circumstances and not to record, disclose or exploit any such information.
(2) By entering into suitable contractual arrangements with the employees and agents working for it, the Buyer shall ensure that these persons, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorised recording of such trade and business se-crets for their own purposes.
§ 11 Choice of law and place of jurisdiction
(1) The legal relations between the Buyer and us shall be governed by the law of the Federal Republic of Germany, without regard to any international or supranational systems of (con-tract) law, in particular without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG). By contrast, the requirements and effects of the reten-tion of title agreed in clause 6 above 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 invalid according to that law.
(2) If the Buyer 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 directly or indirectly from the contrac-tual relationship shall be our registered office in Rheda-Wiedenbrück, Germany. However, we may also file suit at any other permissible place of jurisdiction.
Westfalen Mobil GmbH