Terms and Conditions
General sales and delivery conditions of Best - Eiprodukte Konfeld GmbH & Co. KG for use with companies
Note: This translation is for information purposes only and is not a legally binding document. The original provisions are set out in the original German version.
§ 1 Validity of the terms and conditions1. The following general terms and conditions apply to all business of Best - Eiprodukte Konfeld GmbH & Co. KG..
2. Entrepreneurs are natural or legal persons or partnerships with legal capacity who, upon conclusion of the legal transaction, are acting in exercise of their commercial or independent professional activity.
3. All our deliveries, services and offers are exclusively based on the following terms and conditions. Other conditions do not become part of the contract, even if we do not expressly contradict them. Deviations from these terms and conditions of business shall only become effective if we expressly confirm them in writing. If we carry out a delivery or service without express objection, it can in no case be deduced from this that we have accepted any purchasing conditions of the buyer. Acceptance of our deliveries and services shall be deemed to be acceptance of our General Terms and Conditions of Business.
4. These terms and conditions of business shall also apply to all future business relations, even if the terms and conditions of business are not separately agreed again.
§2 Conclusion of contract, prices1. Our offers are subject to change and non-binding. Declarations of acceptance and orders of the buyer require our confirmation to be legally effective. The order confirmation can in particular also be made by e-mail or be replaced by the delivery of the goods in accordance with the order.
2. The prices are based on the price list valid at the time of order confirmation. Value added tax is charged at the statutory rate. Our prices do not include - unless otherwise agreed - packaging and freight costs, any other ancillary costs and transport insurance to be taken out at the request of the purchaser.
3. We reserve the right to deliver products with improvements that are customary in the industry and/or deviations that are reasonable for the buyer.
4. Accepted orders cannot be cancelled by the purchaser without our consent.
§3 Terms of payment1. Unless otherwise agreed, our invoices are payable immediately without deduction. Unauthorized discounts will not be recognized.
2. If the payments made by the buyer are not sufficient to settle all debts, the oldest debt will be settled - even if the buyer stipulates otherwise. If interest and/or costs have been incurred, then, in deviation from sentence 1, a payment which is not sufficient to settle the entire debt shall first be credited against the oldest costs, then against the oldest interest and finally, in accordance with sentence 1, against the main payment.
3. From the due date, the interest rate is 4 percentage points above the statutory base rate p.a. In addition, we are entitled, after the occurrence of default in payment, to make all our outstanding claims against the purchaser due and payable and to make deliveries owed by us only against advance payment or equivalent securities. The same shall apply in the event of a deterioration in the creditworthiness of the Buyer which occurs after the conclusion of the contract or which becomes known after the conclusion of the contract and which jeopardises the fulfilment of existing payment obligations to us.
4. Bills of exchange will only be accepted on the basis of express agreement. Bills of exchange and cheques shall only be considered as payment after their actual encashment. Any costs and expenses incurred in the encashment shall be borne by the buyer.
5. All costs caused by late payment such as reminder charges, collection fees and the like will be charged to the buyer.
6. The retention of payments due to counterclaims disputed by us and not legally established or the offsetting of counterclaims disputed by us and not legally established is not permitted.
§4 Delivery, delivery times1. The dates and periods stated by us are not binding, unless otherwise expressly agreed in writing.
2. Delivery periods begin with the day of the order confirmation. If information from the buyer is required for the execution of the order, the delivery periods begin at the earliest at the time when we receive the required information.
3. Delays in delivery and performance due to force majeure or other unforeseeable events for which we are not responsible and which make delivery considerably more difficult or impossible - this includes in particular strikes, official orders, lawful lockouts - entitle us to postpone the delivery or performance by the duration of the hindrance plus a reasonable start-up time or, in the event of impossibility due to the part not yet fulfilled, to withdraw from the contract in whole or in part. We will inform the buyer as soon as possible about the unavailability of the delivery and its expected duration. If the delay lasts longer than one calendar month, the buyer is entitled to withdraw from the contract with regard to the unfulfilled part after setting a reasonable grace period. If, in addition, claims for damages exist in case of our fault, § 9 shall apply.
§5 Transfer of risk, transport costs1. In the case of delivery by us or vehicles travelling on our behalf, the risk shall pass to the purchaser upon delivery to the purchaser at the place of destination.
2. In other cases the risk shall pass to the buyer as soon as the goods have been handed over to the person carrying out the transport or have left our warehouse for shipment.
3. Without the conditions of paragraph 1 or 2, the risk shall pass to the buyer if the buyer is in default of acceptance.
§6 Retention of title1. The items sold remain our property until all claims against the purchaser to which we are entitled from the business relationship have been satisfied, including future claims, also from contracts concluded at the same time or later. This also applies if individual or all claims have been included in a current account and the balance has been struck and accepted.
2. The buyer is revocably entitled to resell the goods subject to retention of title (reserved goods) in the ordinary course of business. Other disposals, in particular pledging and transfer of ownership by way of security, are not permitted.
3. The purchaser hereby assigns to us all claims arising from the resale against his customers or third parties; we accept this assignment upon conclusion of the contract. If the reserved goods are resold together with other goods to which we have no title, the buyer's claim against his customers shall be deemed assigned in the amount of the delivery price agreed between us and the buyer. We revocably authorise the buyer to collect the claims assigned to us for his account in his own name.
4. The processing of reserved goods is always carried out by the purchaser on our behalf, without any obligation on our part. If the goods subject to retention of title are processed or inseparably mixed with other goods not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title to the value of the other processed or mixed goods at the time of processing or mixing.
5. The buyer is obliged to keep the goods subject to retention of title properly for us and to treat them with care. The same applies to the newly created goods resulting from processing or mixing.
6. In the event of imminent access by third parties to the reserved goods, in particular in the event of seizure, the purchaser must draw attention to our ownership in a suitable manner and inform us immediately. Paragraph 5 sentence 2 applies accordingly.
7. In the event of conduct on the part of the purchaser in breach of contract, in particular default of payment, we shall be entitled to demand the return of the reserved goods and to revoke the authority to sell in the ordinary course of business (para. 2 sentence 1) and the direct debit authorisation (para. 3 sentence 3) or to withdraw from the contract. If the buyer is an entrepreneur, the taking back of the reserved goods by us shall only constitute a withdrawal from the contract if we expressly declare this in writing. After taking back the goods subject to retention of title, we shall in any case be entitled to sell the goods subject to retention of title by offsetting the proceeds - less reasonable costs of sale - against the Buyer's liabilities. Paragraph 5 sentence 2 applies accordingly.
8. If, in connection with the payment of the purchase price by the buyer, a bill of exchange liability is established on our part, the reservation of title as well as the claim from goods deliveries on which it is based shall not expire before the bill of exchange is honoured by the buyer as drawee.
9. If the value of the existing securities exceeds the claims to be secured by more than 20%, we shall be obliged to release securities at the written request of the buyer; the selection of the securities to be released shall be at our discretion.
§7 Nature of the goods, sampling1. Unless otherwise agreed, only the product descriptions, specifications, markings etc. shall be deemed to be the quality of the goods.
2. We do everything possible to deliver perfect goods. However, the goods are subject to fluctuations in individual properties within the scope of the legal and industry standard tolerance limits. Our samples or descriptions can therefore only represent approximate average values. In particular, our specifications are not to be understood as a guarantee in the sense of § 433 BGB.
3. Sampling and analysis are carried out in accordance with the relevant legal requirements.
§8 Correction of Flaws1. We provide warranty for flaws of the goods at our discretion by replacement delivery or correction. Deviations in the sense of § 2.3 and § 7 cannot be objected to.
2. Obvious defects can only be claimed immediately after receipt of the goods and must be confirmed in writing by our driver or the transport company. Hidden defects must be reported to us immediately after their discovery. In the event of non-compliance with the statutory inspection and/or the aforementioned notification obligations, the assertion of warranty claims is excluded. In case of improper storage, handling or processing by the buyer, the assertion of any defects is excluded, unless the buyer proves at his own expense that we are responsible for the defects. The full burden of proof for all other claims, in particular for the defect itself, for the time of occurrence of the defect and for the timeliness of the notification of defects, shall also be borne by the purchaser.
3. After two attempts at subsequent performance have failed, the purchaser may demand a reduction in price or rescission of the contract, but only if a partial performance rendered is of no interest to the purchaser or the defect triggering the warranty is substantial. For possible claims for damages § 9 applies.
4. Warranty claims due to a defect become time-barred after one year from delivery in the case of new goods; warranty claims for used goods are excluded.
5. We do not grant the buyer any guarantees for the quality of the item. Any guarantees of third parties remain unaffected by this and are to be asserted directly against the buyer.
§9 Limitations of liability1. Any liability on our part in connection with this contract is excluded insofar as the cause of the damage is not due to intent or gross negligence and insofar as there is no injury to the life, body or health of the buyer; insofar as we have violated an essential contractual obligation without being guilty of intent or gross negligence, our obligation to pay compensation is limited to the damage typically incurred.
2. The buyer's claims for damages due to a defect shall become statute-barred one year after delivery of the goods, irrespective of the legal grounds on which the claims may be based, unless a longer limitation period is prescribed by law.
3. Our responsibility under the Product Liability Act remains unaffected. The above limitations of liability shall also not apply if we are accused of fraudulent intent or, contrary to § 8.4, of providing a guarantee.
4. Insofar as our liability is excluded or limited according to the above provisions, this shall also apply to the personal liability of employees, representatives or vicarious agents.
§10 Regulations on the sale of consumer goods to companies1. Statutory rights of recourse from the purchase of consumer goods exist only insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. The buyer is obliged to inform us immediately about his claims from the purchase of consumer goods.
2. The reimbursement of expenses incurred can only be demanded if proof is provided of the expenses incurred.
3. § 9 shall apply accordingly to the claim for damages.
§ 11 Data storageFor the purpose of data processing, personal data of customers are stored. This is done exclusively for our own purposes and only to the extent that the Federal Data Protection Act does not conflict with it.
§ 12 Others1. Unless otherwise stated in the order confirmation, the place of performance for all rights and obligations is Saarbrücken.
2. Exclusive place of jurisdiction for all disputes arising from the contract is Saarbrücken or, at our discretion, the court responsible for the buyer's place of business.
3. The rights of the buyer from this contract are not transferable.
4. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. German law shall apply.
5. The sole binding contractual language is German or English. This shall also apply if contracts are drawn up in any other contractual language than German or English. If German and English are used, German shall take precedence.
6. Should individual provisions of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to the invalid provision. In the event of invalidity of a provision of these General Terms and Conditions of Sale and Delivery, the statutory provisions shall apply in this respect.