1. Scope of Application
1) Quotations, deliveries and services of Webasto SE and its affiliated companies in the sense of Section 15 of the German Stock Corporation Act (“Webasto”) with businesses, public legal entities and public separate estates (“Customer”) shall be based exclusively on these present general terms of sale and delivery (“Terms”). This shall also apply for all future business relations, even if the validity of the Terms is not explicitly renewed. The present Terms shall be accepted by the Customer, at the latest, upon receiving delivery without objection. The Customer's general terms of business shall only apply insofar as they concur with the present Terms; in all other respects, the Customer's general terms of business shall not apply even if not explicitly rejected by Webasto.
2) Divergences from the present Terms shall only be effective if explicitly accepted by Webasto in writing.
2. Quotation and Contract
1) Unless agreed otherwise, the prices quoted by Webasto shall remain valid for 30 days as from submission of the quotation. Orders shall be based on the prices specified in the current price lists.
2) Prices shall apply ex delivery works unless otherwise agreed. The cost of shipment by a carrier of Webasto's choice including packaging shall be borne by the Customer. If return of the packaging has been agreed, the Customer shall return the packaging to the delivery works and shall be liable for accidental loss of the packaging until it has been returned.
4. Transfer of Risk
5. Warranty and Liability
1) Insofar as delivery is effected within the framework of commercial business, the Customer shall examine the goods delivered by Webasto immediately upon receipt and shall report any defects and incorrect quantities in writing within eight days of receiving the goods. If defects which could not be revealed despite stringent incoming inspection are subsequently discovered during the limitation period, they shall be reported to Webasto in writing without delay following their discovery, but in all cases before expiry of the limitation period.
2) In the case of justified complaints, the actual defects shall be repaired or the defective or unserviceable parts replaced free of charge by faultless parts at Webasto's discretion. The defective goods shall be returned to Webasto free of charge for postage and carriage. If a defect is confirmed, Webasto shall bear the cost of returning goods to the Customer by the cheapest means. If such subsequent performance (repair or replacement) is impossible or fails twice for reasons beyond the Customer's control, the Customer shall be entitled to demand rescission of the contract or a reduction in price. Repair or replacement shall be effected without acknowledgement of any legal duty and shall not interrupt the lapse of the warranty for defects for the goods.
3) The warranty period for Webasto heaters and rooftop air-conditioners, as well as for Webasto replacement parts for such equipment and systems, shall equal 12 months. The warranty period shall run as from the day on which the equipment is installed or on which the vehicle in which the new equipment is installed is licensed for the first time, and shall in all cases end 18 months after delivery of the equipment, systems or replacement parts.
4) Warranty claims may only be asserted against Webasto if the warranty card has been completed by the workshop installing the equipment and is returned to Webasto together with the parts forming the subject of the complaint. Moreover, the duplicate of this warranty card (control card) must have been sent to Webasto immediately following installation of the equipment. Notwithstanding these warranty provisions and without acknowledging any legal duty, Webasto may, at its discretion, bear the costs of installation and removal of the equipment within the framework of its workshop reference times. The costs for removal and installation shall only be borne by Webasto if the work is carried out by Webasto or by a customer service centre authorized by Webasto.
5) No liability whatsoever shall be assumed for defects due to natural wear and tear, inappropriate or incorrect use, incorrect storage, non-compliance with the installation and operating instructions, faulty or negligent treatment, the use of unsuitable operating media, as well as climatic or other effects, unless Webasto may be blamed for these circumstances. Liability shall not be assumed for defects attributable to faulty design or the use of unsuitable materials if use of the design or materials has been specified by the Customer despite prior notice by Webasto.
6) All other warranty claims, regardless of their nature, shall be excluded, with the exception of claims for damages limited in accordance with section VI.
7) A guarantee shall only exist if explicitly declared by Webasto in writing.
6. Restrictions of Liability
6.1 Regardless of the underlying legal foundations, Webasto shall only be liable for losses or damage if
a) Webasto has culpably (i.e. at least through negligence) committed a fundamental breach of contract (violated a cardinal duty) in a manner jeopardizing the object of the contract, or
b) the loss or damage has been caused by gross negligence or wilful intent on the part of Webasto, or
c) Webasto has given a guarantee.
6.2 Webasto's liability shall be limited to the typical foreseeable loss or damage in the following cases:
a) Culpable fundamental breach of contract (violation of a cardinal duty) due to neither gross negligence nor wilful intent;
b) Violation of other duties due to gross negligence by Webasto's employees or representatives excluding executive bodies and executive employees;
c) If a guarantee is given, unless the condition of the goods has explicitly been guaranteed.
6.3 In the cases pursuant to paragraph 6.2, Webasto shall not be liable for indirect losses or damage, consequential losses and lost profit, such as living of replacement vehicles.
6.4 Paragraphs 6.1 to 6.4 shall also apply if the goods have only be defined according to their type.
6.5 Paragraphs 6.1 to 6.5 shall also apply if the Customer claims damages against Webasto's employees or representatives.
7. Delivery Period
1) Binding delivery dates or periods shall only be valid if agreed in writing. If delivery is delayed for reasons for which the Customer is responsible or for other reasons beyond Webasto's control, the agreed delivery period or delivery date shall be extended or postponed accordingly.
2) Delivery shall have been effected punctually if the goods have left the delivery works prior to expiry of the delivery period.
3) If Webasto defaults on delivery, the Customer shall be entitled to withdraw from the contract and demand repayment of any advances paid, provided that a reasonable period of grace of at least two weeks has been set and expired fruitlessly.
8. Reservation of Title
1) The goods delivered by Webasto shall remain the property of Webasto until all Webasto's claims against the Customer have been satisfied.
2) If the delivered goods are mixed or combined with other objects, the Customer shall assign to Webasto its claims for surrender and its right of full or joint ownership of the resultant articles when concluding the contract for delivery and shall hold the resultant articles in safekeeping on Webasto's behalf with due commercial care.
3) The Customer shall not be entitled to pledge the reserved goods to third parties nor to assign them by way of security. However, it shall be entitled to resell the reserved goods within the ordinary course of business, provided that reservation of title is simultaneously agreed. In this context, the Customer shall herewith assign all claims arising from the resale or any other associated legal reason to Webasto in full and by way of security. However, the Customer shall be entitled, until further notice, to collect the assigned claim on its own behalf for the account of Webasto; this power shall only be revoked by Webasto if the Customer defaults on its payment obligations.
4) If the reserved goods are seized by third parties, the Customer shall draw attention to Webasto's ownership of the goods and shall inform Webasto without delay. Costs and losses incurred in this context shall be borne by the Customer.
5) If the Customer acts in breach of contract, in particular if it suspends payments or if bankruptcy proceedings are instituted against its assets, Webasto shall be entitled to
a) take back or identify the reserved goods and to enter the Customer's company premises for this purpose and
b) to inform the purchaser of the reserved goods of the assignation of claims and to collect such assigned claims. Upon information of the purchaser of the reserved goods of the assignation of claims by Webasto, the Customer`s entitlement to collect the assigned claims shall automatically end.
6) If the nominal value of the security given for Webasto exceeds Webasto's claims by more than 20%, Webasto shall release the excess security at its discretion when requested by the Customer.
9. Terms of Payment
1) Unless agreed otherwise, Webasto's invoices shall be payable at the latest within 30 days of the invoice date and delivery. The Customer shall be deemed to have defaulted without requiring further reminder if this payment period is exceeded. This has the consequence that Customer has to pay legal interest rates. Insofar as cheques or bills are accepted by Webasto, they shall only be accepted in lieu of performance. Webasto reserves the right to return bills if necessary and instead to demand immediate payment or the provision of other security if there is reason to fear that the bills do not provide sufficient security. Discount and bill charges shall be borne by the Customer and shall be payable immediately.
2) If Webasto acquires knowledge of any circumstances indicating that the Customer's financial standing has significantly deteriorated since concluding the contract, in particular if the Customer fails to settle Webasto's due claims and Webasto's entitlement to payment appears to be at risk, Webasto shall be entitled to deliver only in return for full or partial payment or in return for security. If the Customer becomes insolvent or bankrupt or if a request is filed for the institution of bankruptcy proceedings against the Customer's assets, Webasto shall be entitled to withdraw from all outstanding contracts.
3) The Customer shall only be entitled to set off claims if the counter-claim is undisputed or has been unappealably established by a court of law.
10. Concluding Provisions
1) If the Customer is a fully qualified merchant, Webasto's head office shall be place of performance and jurisdiction for all obligations under the contract.
2) Unless explicitly agreed otherwise, the delivery agreement shall be subject to the law of the state (or country) where the Webasto entity has its seat of business. The provisions of the United Nations Conventions on Contracts for the International Sale of Goods (CISG) and the conflict of law provisions shall be explicitly excluded.
3) If any of these provisions prove or become invalid, this shall not affect the validity of the remaining provisions.