1. APPLICATION OF THE TERMS, USE OF THE ITEMS
1.1. All deliveries by WESTFALIA-Automotive GmbH ("WESTFALIA") shall be effected on the basis of the following Sales, Delivery and Payment Terms ("Terms"). They shall serve as a basis for all offers of WESTFALIA, acceptances and agreements and shall be deemed acknowledged for the duration of the entire business relationship upon the placement of an order or acceptance of the delivery by the Buyer.
1.2. The General Business Terms of the Buyer shall only apply to the extent that WESTFALIA has expressly consented to them. The Terms shall also apply even if WESTFALIA, unaware of conflicting or divergent terms of the Buyer, effects a delivery to the Buyer without reservation.
1.3. The Terms shall apply to Buyers in their capacity as entrepreneurs. According to § 14 BGB, an "Entrepreneur" (Unternehmer) is a natural person or legal entity or a partnership with legal capacity, who or which acts, when concluding a legal transaction, on the basis of its commercial or self-employed activities. Companies in this sense are equivalent to legal entities under public law and special funds under public law.
1.4. Verbal arrangements shall be deemed to have not been concluded.
1.5. The products delivered by WESTFALIA may only be installed by trained personnel in specialist workshops using special tools intended for such installation work and in accordance with the installation and/or maintenance regulations of the relevant vehicle manufacturers.
1.6. The written form requirement in the sense of the Terms shall be fulfilled with email and fax letters.
2. OFFERS, SCOPE OF THE DELIVERY
2.1. Insofar an acceptance period has not been specified in WESTFALIA's offers, the offers shall constitute non-binding price information. A contract shall first be established once an order is accepted by way of a written confirmation of order, unconditional delivery or invoicing by WESTFALIA.
2.2. In existing business relationships, the Buyer shall remain committed to its order or its other offer of contract for a period of four weeks.
2.3. Unless otherwise agreed, the contractually owed quality of the item purchased shall be determined exclusively in accordance with the product description agreed in writing between WESTFALIA and the Buyer.
2.4. Changes to the design or shape, divergences in the color tone and changes to the product contents by the manufacturer during the delivery period are reserved and must be accepted by the Buyer insofar the changes or divergences are reasonable taking into consideration the interests of both contractual parties, particularly those of the Buyer.
2.5. WESTFALIA shall reserve the property rights and copyrights to cost estimates, drawings and other documents. These documents may not be made accessible to third parties without the written consent of WESTFALIA.
2.6. The products of WESTFALIA comply with the applicable standards and provisions that apply in the Federal Republic of Germany. The Buyer must see to any testing and acceptance of the products in accordance with foreign technical standards and provisions that may be necessary to the extent that WESTFALIA does not expressly offer the products for such other countries.
3. PRICES
3.1. The list prices that apply in the order shall be decisive unless agreed otherwise.
3.2. Unless stated otherwise in the confirmation of order, the prices apply ex works excluding transport packaging; WESTFALIA shall invoice them separately.
4. PAYMENT TERMS, DEFAULT
4.1. The purchase price must be paid net cash in full and without deduction upon delivery and/or upon pickup less any downpayment paid. Discounts may only be granted if this has been agreed separately. Non-cash payments are only effected on account of performance. Checks are only accepted following prior written agreement.
4.2. The Buyer shall be in arrears of payment without any further declarations on the part of WESTFALIA 14 days after the handover of the purchased item if the Buyer has not paid.
4.3. WESTFALIA reserves the right to use payments to settle the oldest due invoice items plus the default interest accrued thereon and costs in the following order: costs, interest, main claim.
4.4. The Buyer shall only have a right to set off as well as a right of retention if its claim has been legally established, is undisputed or has been acknowledged by WESTFALIA.
5. HANDOVER OF THE PURCHASED ITEM/DELIVERY/DELAY OF ACCEPTANCE OF THE BUYER
5.1. If the delivery of the purchased item has been agreed, the Buyer shall carry the costs of shipping the purchased item in the absence of any other agreement. In the event of shipment, the risk shall be transferred to the Buyer upon its handover to the person carrying out transport or upon the Buyer picking up said item or when the item has left WESTFALIA's warehouse for the purpose of shipping.
5.2. In principle, WESTFALIA shall, at the cost of the Buyer, insure the entire shipment with transport insurance customary for the sector including loading and unloading as well as direct shipping of the goods to the setup location after unloading. Further insurances will only be taken out if the Buyer requests this in writing and against prepayment.
5.3. In the event of pickup by the Buyer or by the commissioned haulage contractor, the agreed dates must be complied with on time. If the pickup date for the item declared ready for dispatch is not adhered to, WESTFALIA shall have the right to possess the material the next day. The Buyer shall carry all costs incurred as the result of late pickup or the provision of freight unless agreed otherwise. If delivery periods and deadlines are not complied with by the Buyer in the event of orders for the delivery of multiple partial quantities, WESTFALIA shall have the right, after a deadline has been set without success, to deliver the remaining items, to rescind the part of the order not fulfilled or to demand compensation in lieu of performance. If WESTFALIA demands compensation in lieu of performance, it shall amount to 15% of the purchase price. The compensation must be set higher or lower if WESTFALIA demonstrates greater or the Buyer lesser damage. The duty to accept the purchased item constitutes a cardinal contractual duty of the Buyer.
5.4. If shipment or the delivery is delayed at the request of the Buyer, WESTFALIA can, starting one month following advice of completion and/or readiness for dispatch, charge a storage fee equal to one half per cent of the net invoice amount for each month of the delay. The storage money is limited to five per cent of the net invoiced amount unless WESTFALIA demonstrates higher costs.
5.5. Partial performance by WESTFALIA is permissible to the extent it is reasonable for the buyer.
6. DELAY OF DELIVERY
6.1. In principle, delivery periods, which are specified in the confirmation of order, constitute non-binding delivery deadlines, but only indicate the presumed delivery date. Exceeding the expected date of delivery therefore does not constitute delay of delivery. The Buyer must set a reasonable deadline in this respect. A delivery deadline desired by the Buyer and/or a binding delivery period must be expressly specified as such in text form by the Buyer upon ordering and confirmed by WESTFALIA in the confirmation of order. Otherwise, a fixed delivery deadline shall be deemed to have not been agreed in the event of acceptance by WESTFALIA.
6.2. The start of the delivery period specified by WESTFALIA in the confirmation of order requires that all technical questions are always clarified with the Buyer. Compliance with the delivery obligation of WESTFALIA requires the timely and due fulfillment of the obligations of the Buyer - including, but not limited to the duties to cooperate and compliance with the agreed payment terms. If these prerequisites are not fulfilled in a timely manner, the delivery period shall be extended by the length of the delay.
6.3. If WESTFALIA is, due to a force majeure, including, but not limited to strike, lock-out, disruptions to operations as the result of fire, storms or water, or war, official sovereign orders or other circumstances, for which WESTFALIA is not responsible - regardless of whether they have occurred at WESTFALIA or an upstream supplier - temporarily prevented from delivering the purchased item on the agreed date or within an agreed period, the delivery dates and periods shall be extended so long as the aforementioned event or its effects endure. WESTFALIA must advise the Buyer of the presence of such circumstances without undue delay upon becoming aware of them.
7. RETENTION OF TITLE
7.1. The purchased item shall remain the property of WESTFALIA until all purchase price claims, which the Buyer is entitled to on the basis of the business relationship, have been fulfilled. The Buyer must handle the purchased item with care. In the event of loss, damage to or the destruction of the purchased item, the Buyer hereby assigns to WESTFALIA, on today's date, any claims for compensation vis-à-vis third parties.
7.2. The Buyer is only permitted to resell the purchased item in the ordinary course of business and only subject to the condition that the payment of the consideration for the purchased item is rendered to the Buyer. The Buyer must also agree with its customer that the customer first acquires ownership upon rendering said payment.
7.3. In the event of resale, the Buyer hereby assigns to ESTFALIA, on today's date, all claims equal to the final invoiced amount (including VAT), to which it is entitled on the basis of the resale vis-à-vis its customers or third parties, regardless of whether the relevant object of purchase has been resold with or without processing. WESTFALIA hereby accepts each assignment. The Buyer shall be obligated to document the assignment to WESTFALIA with corresponding remarks in its books of account.
7.4. The Buyer shall continue to be authorised to collect claims vis-à-vis its customers or third parties after assignment. Such shall be without prejudice to the authorization of WESTFALIA to collect claims itself. WESTFALIA shall not collect the claims to the extent and so long as the Buyer fulfils its payment obligations as contractually agreed and has not filed an application for the institution of insolvency proceedings. If one of the aforementioned circumstances has occurred, the Buyer shall, upon request, provide all information required for collecting the assigned claim, including, but not limited to handing over the relevant documents and advising the relevant debtors (third parties) of the assignment. If the Buyer is in arrears of payment or insofar WESTFALIA learns of circumstances it deems are capable of reducing the Buyer's creditworthiness, WESTFALIA shall have the right to revoke the right to collect claims.
7.5. The reserved goods shall be worked with and processed on behalf of WESTFALIA as a manufacturer within the meaning of § 950 BGB (German Civil Code). If the reserved goods are processed together with or combined with other items not belonging to WESTFALIA, WESTFALIA shall acquire joint ownership of the new item in proportion to the net invoiced value of the other goods used at the time of processing or combination.
7.6. Goods owned by WESTFALIA may not be transferred as security. In the event of the seizure of the reserved goods by third parties, including, but not limited to attachment, the Buyer shall advise them of WESTFALIA's ownership of the item and notify WESTFALIA, without undue delay, by sending it a copy of the attachment report.
7.7. WESTFALIA shall have the right to withdraw from the contract if the Buyer does not conduct itself in a contractually complaint manner and demand the return of the goods already delivered.
8. LIABILITY FOR MATERIAL DEFECTS
8.1. The statute of limitation for claims and rights due to defects of deliveries - regardless of their legal basis - shall amount to one year. This shall not apply to the extent that under §§ 438 (1)(2) BGB, 479 (1) and 634a(1)(2) BGB longer periods are prescribed, that is, for constructions and items for constructions, recourse claims and construction defects.
8.2. In the event of a replacement delivery within the framework of statutory subsequent performance, the warranty period for the item delivered as a replacement shall not start anew, instead the old warranty period shall remain in place. Such shall also apply in the event of subsequent performance (repair).
8.3. The Buyer's demand for subsequent performance must be issued in written form. WESTFALIA shall have the right to choose between rectification of defects and new delivery whatever the case. WESTFALIA must be granted a reasonable period for each instance of subsequent performance. Such shall be without prejudice to the statutory cases for the dispensability for setting of a time limit.
8.4. If subsequent performance fails, the Buyer shall have right to reduce the purchase price or, at his option, withdraw from the contract. Such shall be without prejudice to the statutory cases for the setting of a time limit.
8.5. Quality and shelf life information as well as other information of WESTFALIA only constitute independent guarantees if they have been expressly agreed and specified. Furthermore, this merely concerns agreements of quality under § 434 BGB.
8.6. If products are manufactured in accordance with the design documents presented by the Buyer, WESTFALIA shall only be liable for due performance. If WESTFALIA is sued by third parties for compensation (e.g., due to the breach of copyright and other rights or product defects) whose cause is not imputable to the manufacturing area of WESTFALIA, but are within the sphere of the Buyer, the Buyer shall be obligated, upon first request, to indemnify and hold harmless WESTFALIA vis-à-vis such claims.
9. WITHDRAWAL
9.1. Within the framework of the statutory provisions, the Buyer may withdraw from the Agreement if WESTFALIA is responsible for the breach of duty. In the event of breaches of duty, said party must declare within a period of time after having been requested to do so by WESTFALIA whether it will withdraw from the contract due to breach of duty or insist on the delivery. In the event of defects, the statutory provisions regarding withdrawal shall apply.
10. COMPENSATION FOR DAMAGE LIMITATIONS AND PRECLUSION OF LIABILITY
10.1. WESTFALIA shall be liable without limitation for wrongful intent, gross negligence and in the event of malice. In the event of slight negligence, to the extent WESTFALIA has breached a duty which is of essential importance for the fulfillment of the contractual purpose (cardinal duty), liability shall be limited to foreseeable damage typical of such contracts. Regardless of the reason for the claim, WESTFALIA shall not assume any further liability unless the parties have expressly stipulated otherwise.
10.2. The above limitations of liability shall not apply to claims due to damage caused by injury to life, limb, or health and for claims in accordance with the Produkthaftungsgesetz (Product Liability Act). To the extent the liability of WESTFALIA is limited or precluded, personal liability of agents and vicarious agents of WESTFALIA shall also be limited and/or precluded.
11. PLACE OF PERFORMANCE, LEGAL VENUE AND APPLICABLE LAW
11.1. The place of performance for all obligations arising from the contractual relationship shall be Rheda-Wiedenbrück.
11.2. The legal venue for all disputes in connection with the contractual relationship if the Buyer is a merchant, a public law entity or public-law fund, shall be Rheda-Wiedenbrück. However, WESTFALIA shall also have the right to sue the Buyer at its legal venue.
11.3. The contract and the Terms are exclusively subject to German law to the exclusion of reference norms of private international law and the UN Convention on Contracts for the International Sale of Goods.
11.4. Should individual provisions of these general Sales and Delivery Terms be invalid or unenforceable, such shall be without prejudice to the validity of the remaining provisions. Invalid or unenforceable provisions shall be replaced with a provision that most closely approximates the financial essence of the invalid or unenforceable provision.
12. INFORMATION SECURITY AND PRODUCT SAFETY
In connection with existing delivery relationships, it is of utmost importance that suppliers comply with the security interests and requirements of information security of Westfalia-Automotive GmbH and their customers. For this reason, all scopes assigned relevant classification (such as specifications, design and development data as well as other critical information) must be processed and protected in a suitable manner.
TISAX (Trusted Information Security Assessment Exchange - www.tisax.org) is a defined industry standard for the protection of information and defines assessment requirements, which must be guaranteed within the supply chain. As a supplier, you are required to actively ensure that your delivery scopes are classified accordingly and that a valid TISAX certificate can be furnished upon request.
Within the meaning of the information security requirements of Westfalia-Automotive GmbH, the supplier has the obligation to secure the entire data stock of existing scopes of delivery in accordance with the state-of-the-art against unauthorised access, modification, destruction or other misuse. Furthermore, the data of Westfalia-Automotive GmbH must be kept strictly separate from data of other customers of the supplier.
If an identified, significant case involving the breach of information security has occurred, the responsible contact person of Westfalia-Automotive GmbH must be informed without undue delay.
The supplier is obligated to provide Westfalia-Automotive GmbH with a central contact person for information security upon request and to report, without undue delay, any changes.
Furthermore, the supplier must ensure that its sub-contractors comply with the described requirements of information security by means of suitable contractual provisions.
Buyer shall be required to comply with all the product specifications, instructions, safety measures and technical information and must act with due care to help to ensure compliance with the applicable product safety requirements.
Buyer shall not be entitled to modify any products, packaging or product information without the prior written consent of Westfalia-Automotive GmbH. Any non-compliance with the product specifications, instructions, safety measures and technical information or any modifications or alterations made thereto or to the products directly or indirectly by Buyer shall result in the Buyer’s exclusive responsibility and liability and obligation to fully indemnify Westfalia-Automotive GmbH against any loss or damage (including any fine, legal fee, costs with consultants, experts, consumer claims, etc.) incurred directly or indirectly.
Buyer shall shall participate in and shall cooperate with Westfalia-Automotive GmbH for monitoring the safety of products placed on the market, especially by passing on information on product risks, keeping and providing the documentation necessary for tracing the origin of products, and cooperating in the action taken by Westfalia-Automotive GmbH and competent authorities to avoid the risks.
Buyer shall fully cooperate with Westfalia-Automotive GmbH during any product recall or other safety related campaign whether initiated by Westfalia-Automotive GmbH or any Westfalia-Automotive GmbH client in relation to the products and shall immediately make available to Westfalia-Automotive GmbH any information, specification, sample, document as may be required to document or defend Westfalia-Automotive GmbH during the relevant campaign.
Buyer shall immediately notify Westfalia-Automotive GmbH if Buyer suspects or become aware of any potential risks which the products may pose to the consumer that are incompatible with the general safety requirements or if Buyer suspects or becomes aware of any potential product non-conformity and shall cooperate with and act upon the instructions of Westfalia-Automotive GmbH on further actions to be taken. Buyer shall document in detail and inform Westfalia-Automotive GmbH in writing immediately of any actions taken.
In case of any investigation or inquiry by a competent authority, Buyer shall fully and immediately notify Westfalia-Automotive GmbH thereof and cooperate with Westfalia-Automotive GmbH including by providing any required information to Westfalia-Automotive GmbH during such investigation or inquiry and shall not make any acknowledgement, admission, statement or disclosure without the prior written consent and instruction of Westfalia-Automotive GmbH.
13. ETHICAL BUSINESS CONDUCT, TRADE RESTRICTIONS
Buyer shall not, and shall procure that its affiliates and its and their directors, employees, agents, representatives, contractors or sub-contractors shall not, engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption laws, regulations and codes and that it and they shall have in place adequate procedures, including any whistleblower procedures, designed to prevent any person working for or engaged by Buyer or any other third party in any way connected to these terms, from engaging in any activity, practice or conduct which would infringe any anti-bribery and anti-corruption laws, regulations and codes.
Buyer shall and shall procure (where relevant) that all persons who are involved in the manufacturing, production, marketing and/or sale of the products in connection with, or which will or may be used in performing or to support the performance of these terms in any part of the world (collectively, its "Supply Chain") shall at all relevant times: comply with the provisions of any anti-slavery, anti-human trafficking, anti-child labour, working conditions and wages, anti-discrimination, anti-harassment, human rights legislation, regulation and codes.
Buyer shall and shall procure that its Supply Chain has implemented appropriate measures and procedures to comply with any environmental (including carbon, gas, water, anti-pollution, waste reduction, air quality, waste monitoring) legislation, rules, codes and must cooperate with Westfalia-Automotive GmbH and make available to Westfalia-Automotive GmbH any information or specification required so that Westfalia-Automotive GmbH can comply with any environmental and related reporting obligations.
Buyer must have and shall procure that its Supply Chain keeps appropriate records and which can be audited by Westfalia-Automotive GmbH upon request to review and assess compliance with these terms.
Without prejudice to the generality of the foregoing, Buyer shall maintain detailed, accurate and up-to-date records setting out its staff hiring procedures, its supplier selection processes and the steps it takes to ensure that it and each member of its Supply Chain is not engaged in practices which are prohibited by the above mentioned legislation and shall promptly provide copies of such records to Westfalia-Automotive GmbH.
For the purposes of this section, "Trade Restrictions" means any applicable laws and regulations relating to sanctions (including comprehensive or sectoral embargoes and restricted parties) and export controls (including military or dual usage products) administered by HM Treasury, US Department of Treasury and any similar sanctions imposed by the European Union, the United Nations and any other equivalent body (governmental or otherwise) and any other applicable law or regulation.
Buyer represents, warrants and undertakes that:
(a) neither it nor any affiliate or personnel is:
(i) subject to any Trade Restrictions (including but not limited to a designation on an applicable restricted party list administered by any of the applicable abovementioned administrations); or
(ii) aware of or has taken any action, directly or indirectly, that could result in a breach of any Trade Restrictions;
(b) it conducts, has conducted and will conduct its business in compliance with Trade Restrictions and has instituted and maintains policies and procedures designed to ensure continued compliance with Trade Restrictions;
(c) it will promptly notify Westfalia Automotive GmbH in writing together with all relevant details if it is unable to perform any one or more of its obligations under these terms in whole or in part as a result of the imposition of Trade Restrictions against a country or person or the addition of a good or service to a list of sanctioned goods or services under an applicable Trade Restrictions regime, including but not limited to where it is in breach of this section; and
(d) following notification in accordance with paragraph (c), it will work with Westfalia Automotive GmbH to agree, within a reasonable period, a practical solution to permit continuity of these terms in a manner that is compliant with Trade Restrictions, to the extent legally possible.
If the Parties do not agree a practical solution (including but not limited where no practical solution is legally possible) within 10 working days of receipt of notification under paragraphs (c) or (d) or within 10 working days of Westfalia Automotive GmbH becoming aware of the risk referred to above, Westfalia Automotive GmbH may terminate these terms immediately by written notice.
Buyer will indemnify and keep indemnified Westfalia Automotive GmbH against all losses, liabilities, fines, costs, expenses (including legal fees on an indemnity basis) and damages suffered or incurred by Westfalia Automotive GmbH arising out of or in connection with Buyer breaching the terms of this section.
Breach of this section shall entitle Westfalia Automotive GmbH to suspend (in whole or part) for such period as the Westfalia Automotive GmbH may in its absolute discretion determine or terminate these terms (in each case, at the Westfalia Automotive GmbH option) by written notice with immediate effect.
Version: June 2024
