Westfalia - COS
Westfalia - AVB - General Terms and Conditions of Sale and Delivery
Westfalia Mobil GmbH
General Terms and Conditions of Sale and Delivery
§ 1 Preface, Scope
(1) These general terms and conditions of sale and delivery (hereinafter: "GTC") shall apply to all business relationships with our customers (hereinafter: "Buyer"). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or the delivery of movable properties (hereinafter: "Goods"), regardless of whether we manufacture the Goods ourselves or buy them from suppliers (§§ 433, 650 of the BGB). The current version of the GTC shall also apply as a framework agreement to future contracts for the sale of movable properties with the same Buyer, without us having to refer to them again in each individual case.
(3) Our GTC shall apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer only become an integral part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in any case, for example, even if we carry out the delivery to the Buyer without reservation, knowing the general terms and conditions of the Buyer.
(4) Individual agreements made with the Buyer in individual cases (including subsidiary agreements, additions, and changes) always take precedence over these GTC. A written contract or our written confirmation is decisive for the content of such agreements. There are no verbal subsidiary agreements.
(5) Legally relevant declarations and notifications that are to be submitted to us by the Buyer after the conclusion of the contract (e.g., setting deadlines, notifications of defects, declaration of withdrawal, or reduction) must be in text form to be effective.
(6) References to the validity of statutory provisions are only significant for clarification. Even without such a clarification, the statutory provisions shall apply unless they are directly modified or expressly excluded in these GTC.
§ 2 Vehicle configurator and conclusion of contract
(1) The binding conclusion of contract between the Buyer and us is based on the following paragraphs. The Buyer can only be entrepreneur as defined by § 14 of the BGB.
(2) In the first step, the Buyer selects the desired Westfalia model on our website at www.westfalia-mobil.com and configures it according to their wishes. To do this, the Buyer uses the configuration tool provided on our website at www.westfalia-mobil.com (hereinafter: "Configurator"). The configurator automatically guides the Buyer step by step through the configuration process and gives the Buyer the opportunity to select different equipment features and components. The configurator provides detailed descriptions that can be viewed for each equipment feature. In the ongoing configuration process, the configurator displays the respective unit price of the respective equipment feature as well as the ongoing total price of the vehicle. These are non-binding price recommendations, which serve only as a guide. By selecting and deselecting various features, the total price is adjusted, and the desired vehicle selected is visualized in real time. During the configuration process, the Buyer can change the configuration at will.
(3) After going through the configuration process, the Buyer receives a general overview of the configuration he has selected. This includes an overview of the standard special equipment features as well as optional ones subject to additional charge, the gross and net vehicle price, and all technical data (energy sources, engine power, payload, etc.). The offer letter in terms of Paragraph 10 reserves the right to provide a guideline value for the consumption, CO₂ emissions, and CO₂ efficiency. The consumption, CO₂ emissions, and CO₂ efficiency may vary depending on the selected equipment and payload. The Buyer has the option of store their specific, individual configuration in the form of a number/character code [hereinafter: "Configuration Code"] or share it by e-mail. The configuration is stored for a duration of 8 weeks. If no order is placed in accordance with Paragraphs 10 and 11 for a duration of 8 weeks, the configuration will be deleted without prior notice. The Buyer is given the opportunity to request an individual offer from us in accordance with Paragraphs 9 and 10 by sending us their Configuration Code.
(4) The respective configuration embodied in the Configuration Code does not constitute any offer in the legal sense. Subject to errors and changes. In particular, we do not guarantee that the equipment features selected in the respective configuration will continue to be available even after the configuration has been completed.
(5) After completing the configuration, there may be changes to products and services over which we have no influence. We reserve the right to change the vehicle stock and integral parts of the configuration as well as their prices at any time and without prior notice and without giving reasons. In particular, this also includes the right to expand individual vehicle components, delete them without replacement, or exchange them. We do not guarantee that all vehicle components and equipment features are continually available. Not all equipment features can be combined with each other. The availability and choice of equipment features depend on the basic vehicle selected. Not all equipment features are equally available for every basic vehicle. Individual pages in the configuration process can also contain types and services that are not offered in individual countries.
(6) The visualizations in the configurator are only symbol and example images for visual accentuation. The illustrations may also contain accessories, special equipment, or other items that are not part of the standard scope of delivery or service. Subject to possible optical deviations. They do not constitute a material defect.
(7) We do not guarantee that the configurator or configurations created are technically accessible and compatible with every end device or browser. We reserve the right to carry out technical work on the configurator at any time, which may mean that the configuration process or configurations created are temporarily unavailable.
(8) We assume no liability for an unexpected loss of data of the dataset of the respective vehicle configuration stored using the Configuration Code.
(9) By sending us the Configuration Code, the customer submits a non-binding inquiry that includes an invitation to us to prepare an offer. We will confirm receipt of this request with a legally non-binding, automated confirmation of receipt.
(10) We will make an offer to the Buyer based on their desired configuration within a reasonable period of time. Our offers are non-committal and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), other product descriptions, or documents (also in electronic form), the ownership and copyrights of which we have reserved. Errors, prior sale, and non-availability of individual equipment features are reserved. Subsequent changes to the submitted and desired configuration by the Buyer have no effect on our offer.
(11) The Buyer can accept this offer within a period of three weeks by using the order confirmation form sent to them along with the offer. For the binding acceptance of the purchase order, the Buyer must sign this order confirmation and send it to us. This can also be sent using long-distance communication means. This declaration of acceptance is considered a legally binding purchase order and brings about an effective purchase contract.
(12) Subsequent changes to the desired configuration at the request of the Buyer are only possible through an amendment contract and require our consent. The manufacturer reserves the right to make design or shape changes, deviations in color, and changes to the scope of delivery or services during the delivery period, provided that the changes or deviations are reasonable for the customer, taking our interests into account. Color deviations are due to technical reasons. Statements about statutory, legal, and tax regulations and effects are only valid for the Federal Republic of Germany.
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us in the offer.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the Buyer of this immediately and communicate the expected new delivery deadline simultaneously. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the Buyer. The failure to supply ourselves in due time by our suppliers shall be deemed non-availability of the service in this sense in particular if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and termination as well as the statutory provisions on the execution of the contract in the event of an exclusion of the obligation to provide service (e.g., impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected. The Buyer's rights of withdrawal and termination according to § 8 of these GTC shall also remain unaffected.
§ 4 Delivery, passing of risk, acceptance, default of acceptance
(1) Delivery is ex-warehouse, which is also the place of fulfillment.
(2) The risk of accidental loss and accidental deterioration of the Goods is transferred to the Buyer at the latest during the handover of the Goods. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay is already transferred when the Goods are delivered to the freight forwarder, the freight carrier, or the person or institution otherwise responsible for carrying out the shipment. If acceptance has been agreed, this is decisive for the passing of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this we charge a flat-rate compensation amounting to 0.5% of the net invoice value of the relevant delivery per calendar week started, however, no more than 5% of the net invoice value, starting with the delivery period or, if there is no delivery period, with the notification that the Goods are ready for shipment. Evidence of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the flat-rate is to be offset against further monetary claims. The Buyer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the aforementioned flat-rate.
§ 5 Prices and terms and conditions of payment
(1) Subject to the regulation in Paragraph 2 and, unless otherwise agreed in individual cases, our current prices at the time the contract is concluded apply in accordance with the offer as defined by § 2 Paragraph 10. We reserve the right to revoke our offer until the customer accepts the purchase order and to submit a price-adjusted offer.
(2) If, according to the contractual agreements, the Goods are only to be delivered more than four months after the conclusion of the contract, the purchase price will change in the same proportion as the list prices change for the vehicle, special equipment, and transfer costs plus statutory sales tax applicable to the seller up to the day of delivery.
(3) In the case sale by delivery to a place other than the place of performance (§ 4 Paragraph 1), the Buyer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the Buyer. The Buyer also bears any customs duties, fees, taxes, and other public charges.
(4) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, in the case of contracts with a delivery value of more than EUR 50,000.00, we are entitled to demand a down payment of 20% of the purchase price. The down payment is due and payable within 14 days of invoicing.
(5) When the aforementioned payment period expires, the Buyer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. Our claim to the commercial maturity interest (§ 353 of the German Commercial Code (HGB)) remains unaffected in relation to merchants.
(6) The Buyer is only entitled to rights to set-off or retention rights insofar as their claim has been legally established or is undisputed. In the event of defects in the delivery, § 7 Paragraph 6 shall remain unaffected.
(7) If it becomes apparent after conclusion of the contract that our claim to the purchase price is at risk due to the Buyer's inability to pay (e.g., due to an application for the opening of insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract (§ 321 of the BGB). In the case of contracts for the production of non-fungible items (single-unit productions), we can declare our withdrawal immediately; the statutory regulations on the dispensability of setting a deadline shall remain unaffected.
§ 6 Reservation of proprietary rights
(1) We reserve ownership of the Goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The Goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The Buyer must inform us immediately in writing if and insofar as third parties access the Goods belonging to us.
(3) If the Buyer acts in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods based on the retention of title. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the Goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment unsuccessfully or setting a deadline of this kind is unnecessary under the statutory provisions.
(4) The Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall also apply.
a) The retention of title extends to the products created by processing, mixing, or combining our Goods at their full value, whereupon we are considered the manufacturer. If the ownership of third-party goods persists in the case of processing, mixing or combination with third-party goods, we will acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined Goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The Buyer hereby assigns to us as security all claims against third parties arising from the resale of the Goods or the product or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer mentioned in Paragraph 2 also apply with regard to the assigned claims.
c) The Buyer remains authorized to collect the claim beside us. We are obligated not to collect the claim as long as the Buyer meets their payment obligations to us, does not default in payment, no application for the opening of insolvency proceedings has been filed, and there are no other defects in their ability to pay. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment.
d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Buyer.
§ 7 Claims of the Buyer for defects
(1) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below.
(2) The Buyer's claims for defects presuppose that they have complied with their statutory obligations of inspection and notification (§§ 377, 381 of the HGB). If a defect is found during the inspection or later, we must be notified of this in writing immediately. The notification is deemed to be immediate if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the Buyer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded.
(3) If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse the selected type of supplementary performance under the statutory requirements shall remain unaffected.
(4) We are entitled to make the supplementary performance owed dependent on the payment of the purchase price due by the Buyer. However, the Buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
(5) The Buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the Goods rejected for testing purposes. In the case of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions.
(6) We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor, and material costs, if there is actually a defect. However, if the Buyer's request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the Buyer.
(7) In urgent cases, e.g., if operational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remedy the defect themselves and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible beforehand, of such a self-performance. The right to self-performance does not exist if we were entitled to refuse subsequent performance in accordance with the statutory provisions.
(8) If the supplementary performance has failed or a reasonable period of time to be set by the Buyer for the supplementary performance has expired without success or it is unnecessary according to the statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(9) Claims of the Buyer for damages or reimbursement of wasted expenses exist only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stated in these GTC including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We are liable for compensation for damages in the event of intent and gross negligence for whatever legal ground. We are only liable in case of simple negligence
a) for damage resulting from injury to life, limb, or health,
b) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from Paragraph 2 do not apply if we have concealed a defect deceitfully or have assumed a guarantee for the quality of the Goods. The same applies to claims by the Buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 of the BGB) is excluded. Otherwise, the statutory prerequisites and legal consequences shall apply.
§ 9 Statute of limitations
(1) The general limitation period according to Section 438, Paragraph 1, No. 3 of the BGB applies to claims arising from defects in quality and title. If acceptance has been agreed upon, the limitation period begins with acceptance.
(2) If the Goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness, the statutory period of limitation is 5 years from delivery (§ 438 Paragraph 1 No. 2 of the BGB). Special statutory provisions for third-party restitution claims (§ 438 Paragraph 1 No. 1 of the BGB) are also unaffected in the event of fraudulent intent on the part of the seller (§ 438 Paragraph 3 of the BGB) and for claims in supplier's recourse in the event of final delivery to a consumer (§ 479 of the BGB).
(3) The aforementioned limitation periods of sales law also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 of the BGB) would lead to a shorter limitation period in individual cases. The limitation of the product liability act shall remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the Buyer in accordance with § 8.
§ 10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply exclusively to these GTC and all legal relationships between us and the Buyer, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, the prerequisites and effects of the retention of title according to § 6 are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the Buyer is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered place of business in Gotha. However, we are also entitled to bring an action at the Buyer's general place of jurisdiction.
Westfalia Mobil GmbH
As of July 2022