General Terms and Conditions of Best4Tires GmbH
(Last updated: 7 March 2022)
2) Offer / Conclusion of Contract
3) Prices, Terms of Payment, Due Date / Default
4) Delivery, Terms of Delivery, Assumption of Risk
5) Ownership, Retention of Title
6) Liability for Defects, Warranty
7) Breach of Duty
8) Place of Performance, Place of Jurisdiction, Applicable Law
9) Severability Clause and Other Provisions
1) Offer / Applicable Law
a) Our general terms and conditions apply exclusively; we shall not recognise any conflicting or deviating terms and conditions of the business partner, unless we explicitly agree to their validity in writing. Our general terms and conditions shall apply even if we unreservedly provide a delivery despite being aware of the business partner’s conflicting or deviating terms and conditions. These general terms and conditions shall also apply to any future business relationships, even if they are not explicitly agreed again in each case. Our general terms and conditions shall be deemed to have been accepted, at the latest, when our services are accepted.
b) The currently valid version of our general terms and conditions can be viewed and printed out on the following website: www.best4tires.com.
2) Offer / Conclusion of Contract
a) Our offers are non-binding. We reserve the right to make changes to our offers in terms of colour and design. Drawings, illustrations, dimensions, weights and other specifications shall only be binding if they are explicitly agreed in text form. We shall be deemed to have accepted an order if we execute it.
b) Our sales representatives are not authorised to make any verbal side agreements or assurances that go beyond the text form of the contract. Before placing an order, the business partner must find out about any requirements, particularly national TÜV approvals and requirements specified by the vehicle manufacturer.
3) Prices, Terms of Payment, Due Date
a) Our prices are net prices. The statutory rate of value added tax is therefore not included in our prices; it shall be indicated separately in the invoice at the statutory rate applicable on the date of invoicing. Our prices are non-binding. The valid prices shall be the list prices applicable on the delivery date. Best4Tires GmbH reserves the right to point out any mistakes in its lists and invoices and to recalculate its invoiced amounts.
b) The agreed price shall generally apply. If the price has changed by the time the service is provided due to a change in the market price or an increase in the fees charged by third parties involved in the provision of the service, the higher price shall apply. If this is 20% or more above the agreed price, the business partner shall have the right to withdraw from the contract. This right must be exercised immediately after the price increase has been communicated. Our invoices shall be due immediately without deductions.
c) Our prices apply from our respective warehouse. Unless otherwise agreed, the shipping and packaging costs shall be borne by the business partner. Unless otherwise agreed, the costs of any agreed transport insurance or similar insurance shall be borne by the business partner.
d) If the business partner defaults on a payment, we shall be entitled to charge default interest at a rate of 9 percentage points above the base interest rate. However, we reserve the right to prove we have incurred higher interest losses and to charge accordingly at any time; we shall be entitled to charge the business partner € 15.00 for each payment reminder. We reserve the right to claim compensation for further damage.
e) The business partner shall only be entitled to a cash discount if we explicitly grant such in text form. If we have granted a different and/or regular cash discount in the past, this shall not automatically constitute an obligation on our part to continue granting a cash discount on further invoices.
f) A payment shall only be deemed to have been made when the amount is at our disposal. In the case of a bank transfer or cheque payment, the payment obligation shall only be deemed to have been fulfilled once the amount has been irrevocably credited to one of our bank accounts. A special agreement shall be required for payment by bill of exchange. If an invoice is settled by cheque, this shall only be accepted as conditional payment subject to clearance and shall not constitute a deferment of payment.
g) Even if the business partner has terms and conditions to the contrary, we shall be entitled to first deduct payments from his existing debts; we shall inform the business partner about the way in which amounts have been settled. If costs and interest have already been incurred, we shall be entitled to deduct the payment first from the costs, then from the interest and finally from the main payment.
h) If the business partner defaults on a payment, we shall be free to refuse the further performance of the contract. If there is a significant risk to our payment claim, we shall be entitled to demand advance payments or sufficient security.
i) The business partner may only offset our claims against his undisputed or legally recognised counterclaims. The business partner shall only have a right of retention if this is based on the same contractual relationship.
j) The business partner must not assign or pledge any claims against held us. We shall be entitled to assign our claims to third parties for financing purposes.
k) If the business partner is in arrears with liabilities from a different contractual relationship within the business relationship, or if we have justified doubts about the business partner’s solvency, we shall be entitled to demand advance payments and postpone our deliveries until such advance payments have been made. Our doubts shall be particularly justified if a credit agency rates the business partner as worse than “satisfactory” and/or a credit insurance provider reduces or cancels a credit limit set up for the business partner.
l) If the business partner violates the contract, particularly by defaulting on a payment, we shall also be entitled – in addition to the provisions set forth in Section 3d of these general terms and conditions – to take back the goods; the business partner hereby agrees to return the goods in such cases. The return of the goods shall only constitute our withdrawal from the contract if this is explicitly declared by us. The costs incurred for taking back the goods (particularly transport costs) shall be borne by the business partner. We shall also be entitled to prohibit the business partner from reselling or processing the goods delivered under retention of title and to revoke his right to collect receivables (see Section 5f).
m) Invoices shall generally be sent electronically. Paper invoices shall only be sent if specifically requested. The business partner hereby agrees to digital invoicing.
4) Delivery, Terms of Delivery, Assumption of Risk
a) Any dates and deadlines specified by us shall be approximations based on calendar weeks; they shall not be binding unless we explicitly describe them as such in text form.
b) Any contractually agreed periods and deadlines for services shall begin, at the earliest, when the documents and other materials to be obtained by the business partner have been submitted, when all essential commercial and technical questions have been clarified by the contracting parties and when the business partner has provided any permissible down payments and securities as agreed. If these requirements are not met, the date or deadline shall be extended by a reasonable period of time, unless we are responsible for the delay. Such an extension shall be deemed reasonable if it is at least as long as the period in which the business partner has not performed his obligations or has not provided (complete) information. In such cases, we may postpone further deliveries until we have received securities. If the business partner refuses to accept a delivery, the delivery costs shall be borne by the business partner in each case.
c) We shall be entitled to make partial deliveries at any time, provided they are reasonable for the business partner. The business partner must prove that a partial delivery is unreasonable. In the event of partial deliveries, each individual delivery may be invoiced separately. If the goods leave the premises of BEST4TIRES GMBH, the business partner shall assume all risks. A delivery shall only be insured at the request and expense of the business partner. If shipping is delayed due to circumstances for which the business partner is responsible, the risk shall be transferred to the business partner when the goods are ready for dispatch or made ready for delivery on the agreed delivery date. This shall also apply in any other cases in which we are not responsible for a shipping delay.
d) Any delays in performance due to force majeure or any other events that make it significantly more difficult or even impossible for us to deliver the goods, not only temporarily (e.g. fire damage, flooding, strike action, lawful lockouts, epidemics and pandemics, provided a risk level of at least “moderate” is identified by the Robert Koch Institute), we shall not be held responsible even in the case of agreed binding dates and deadlines. Any such incidents shall entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable subsequent start-up period or to withdraw from all or part of the contract due to the unfulfilled aspect.
e) If a delivery deadline is not met, the business partner must grant a reasonable grace period of at least one week. If the delivery deadline is still not met after the reasonable grace period, the business partner shall be entitled to compensation for the delay amounting to 0.5% for each full week of delay, but no more than 5% of the amount invoiced for the deliveries and services affected by the delay. The business partner shall not hold any further claims, unless the delay is caused by at least gross negligence on our part.
f) In the event of a delivery delay (i.e. once the reasonable grace period has expired to no avail, as above), the business partner may withdraw from the contract. The business partner may also exercise this right – even without a grace period – if we are unable to perform our contractual obligations. A delivery delay shall be deemed equivalent to our inability to perform our contractual obligations if a delivery is not made in more than one month. Notwithstanding the provision below, the business partner may not assert any claims for damages (including for any consequential damage); the same applies to the reimbursement of expenses.
g) The above limitations of liability shall not apply if a commercial transaction for delivery by a fixed date is agreed.
h) Even if we bear the freight costs, all deliveries shall be made at the risk of the business partner, unless we use our own vehicles and staff to transport the goods and the damage is not caused by third parties. The risk shall be transferred to the business partner when the goods are handed over to the post office, parcel service, forwarding agent or carrier, and at the latest when they leave the factory or warehouse.
5) Ownership, Retention of Title
a) Best4Tires GmbH shall retain ownership of the delivered goods until all claims from the business relationship, including future and conditional claims, have been settled in full. The business partner shall not be permitted to pledge such reserved goods or assign them as security until ownership has been transferred.
b) The business partner must not pledge the delivered items – or the resulting claims – or assign them as security.
c) The goods may be resold within the business partner’s ordinary course of business. In preparation for such an eventuality, all claims and ancillary rights arising from the resale – up to the invoice amount – are hereby assigned to Best4Tires GmbH. The assignment is hereby accepted; however, the business partner shall remain authorised to collect the receivables. Best4Tires GmbH shall not disclose the assignment, unless the business partner defaults on a payment by at least 2 weeks or cancels a SEPA direct debit arrangement. In such cases, the business partner agrees to inform his customers that the claims have been assigned to us and to immediately provide us with a complete list of debtors for the claims assigned to us. We shall be entitled to inspect the business partner’s books in such cases to determine the names and addresses of his customers.
d) The goods shall remain our property, even when assembled, until all claims arising from the business relationship have been settled in full. Any goods that are still (co-)owned by us shall be referred to hereinafter as “reserved goods”. If the business partner ever treats or processes reserved goods, this shall be done for us. At the very least, we shall be entitled to co-ownership in the value of the condition of the reserved goods before the treatment or processing of the item created as a result. The business partner shall only be permitted to sell the reserved goods within his ordinary course of business.
e) The business partner shall remain authorised and obliged to collect such receivables even after the assignment, although we too shall remain authorised to collect the receivables ourselves. However, we agree to refrain from collecting the receivables as long as the business partner uses the proceeds to properly fulfil his payment obligations to us and provided that he has not defaulted on payment, filed for insolvency or suspended payments. In the event of insolvency proceedings, the business partner shall be obliged to make every third party aware that the goods are our property by using labels or other means. If the business partner files for insolvency himself, this must be done before the application is submitted; if a petition is filed by creditors, this must be done immediately after the debtor (i.e. business partner) is heard.
f) If one of the business partner’s customers is involved in insolvency proceedings, the business partner must inform us of the assigned claims and the debtor (customer) upon request, provide all information required for us to collect the receivables, hand over the relevant documents and notify the debtor (customer) that the claims have been assigned to us. In such cases, the business partner’s authorisation to collect the receivables, as stipulated in the third sentence of Section 5c, shall expire with immediate effect.
g) The same shall apply in the event of seizures carried out by third parties against the business partner. If such an event ever occurs, we must be immediately informed by telephone and then in text form. As long as we hold a claim, we shall be entitled to request information from the business partner at any time as to which goods delivered under retention of title are still in his possession and where they are located. In addition, the business partner shall be obliged to immediately inform us of any changes to the storage location by stating the new whereabouts of the reserved goods. We shall also be entitled to inspect the goods – wherever they may be located – at any time. If the business partner violates the contract, particularly by defaulting on a payment, we shall be entitled to withdraw from the contract after issuing a reminder. The business partner shall then be obliged to return the goods. We may only demand the return of reserved goods once we have withdrawn from the contract. In addition to withdrawing from the contract, we reserve the right to claim damages for the failure to perform contractual duties. However, we shall endeavour to sell the returned goods as best we can. The proceeds shall then be deducted from our claim for damages.
h) If we assert our retention of title in the event of late payment or impending insolvency, or if we take back the delivered items, this shall constitute our withdrawal from the contract. We shall not have to set a deadline before exercising our right of withdrawal.
i) If the realisable value of the securities exceeds our claims by over 20%, we shall release securities of our choice at the business partner’s request.
j) The business partner shall assume the risks associated with our reserved goods and shall be obliged to store them carefully and insure them adequately against loss (e.g. theft, water, fire). The business partner hereby assigns to us the claim against the insurance company in the event of a loss, namely a priority share equal to the purchase price of the goods delivered under retention of title that have not yet been paid for.
6) Liability for Defects, Warranty
a) All claims for defects shall become time-barred one year after the transfer of risk; the statutory limitation periods for the right of recourse pursuant to Section 478 of the German Civil Code (BGB) shall remain unaffected by this provision.
b) The business partner must check the goods for defects immediately after delivery. Any obvious defects must be reported in text form immediately, but no later than one week after the goods are received; otherwise, the business partner’s warranty claims shall be rejected. The notification of defects merely has to be submitted within this time for the deadline to be met. The business partner shall be obliged to inspect the goods in accordance with Section 377 of the German Commercial Code (HGB).
c) We may use electronic means to confirm receipt. For this purpose, either the printed name of the recipient or another person authorised to receive the goods shall be documented in conjunction with a digitalised or electronic signature or another form of identification shall be used (e.g. PIN).
Any deviations from the expected scope of a delivery must be noted on the digital delivery or shipping documents or on the electronic readers. Any defects in packaging shall be deemed irrelevant as long as they do not affect the suitability of the goods. Any defects must be reported immediately in text form. If defects are only reported afterwards and could have been discovered upon receipt following a careful inspection of the goods, they shall be deemed irrelevant and shall not justify any claims from the business partner.
d) The business partner shall be fully responsible for proving that all requirements are met for a claim, particularly the existence of the defect itself, the time at which the defect was discovered and the timeliness of the notification of defects.
e) Our liability for defects shall not extend to any minor errors that do not significantly affect the value, suitability or usability of the goods.
f) We shall be entitled to rectify the situation by taking measures of our choice. The limitation period shall not be suspended or interrupted by any such rectification measures.
g) The business partner shall only be entitled to reduce the purchase price or withdraw from the contract and/or assert claims for damages if we have repeatedly failed in our attempts to rectify the situation. The business partner may only assert a claim for damages caused by our gross negligence or intent. In each case, compensation for damages shall be limited to the amount that the business partner would not have lost if he had never entered into the transaction in the first place. We shall only pay compensation for consequential damage if this is caused by our intentional actions.
h) If the business partner has a right of recourse in accordance with Sections 478 and 479 BGB, the business partner must first give us the opportunity to remedy the defect ourselves. The business partner may only then assert a payment claim after a reasonable period of time has elapsed to no avail.
i) If the business partner asks us to remedy a defect, we shall examine the complaint. If there proves to be a defect in the legal sense, we shall bear the inspection and rectification costs. If there is no defect in the legal sense, the business partner shall be obliged to reimburse us for the costs incurred due to the unjustified request (e.g. for transport, travel, labour and materials). The business partner is explicitly made aware of this consequence. The business partner explicitly acknowledges this obligation.
j) In the event of a defective delivery or service, we reserve the right to repair the goods or provide a replacement. A rectification period of one week shall be considered reasonable. If a repair is not economically feasible, the situation shall be rectified by means of a replacement delivery. The business partner only reserves the right to demand a reduction in payment (discount) or the cancellation of the contract (withdrawal) after we have failed in our attempts to rectify the situation. The business partner shall not be entitled to withdraw from the contract in the case of only a minor breach of contract, particularly in the case of only minor defects. In the event of withdrawal or a replacement delivery, we shall grant the business partner a deduction corresponding to the degree of wear and tear of the defective tyre. Once we have performed our obligations under the warranty, the defective item shall become our property.
k) Any transport damage caused by a carrier must be reported to the carrier. The relevant deadlines must be observed. Best4Tires GmbH shall not accept any obligation to take back any correctly delivered goods that have been ordered by the business partner. However, if Best4Tires GmbH decides to take back such goods as a goodwill gesture, it reserves the right to deduct 10% from the gross invoice amount as a processing fee. If Best4Tires GmbH takes back correctly delivered goods that have been ordered by the business partner, it shall generally issue a credit note minus the processing fee mentioned above.
7) Breach of Duty
a) The business partner may only assert claims for damages against us (or our vicarious agents) – for whatever legal reason – beyond the scope of the warranty on the basis of slight negligence if an essential contractual duty has been breached. In such cases, claims for damages shall be limited to the typically foreseeable degree of damage. Any claims due to physical injuries or due to property damage under the German Product Liability Act (ProdHaftG) shall remain unaffected.
8) Place of Performance, Place of Jurisdiction
The place of performance shall be our company’s registered office in Höhr-Grenzhausen. If the business partner is an entrepreneur, a legal person incorporated under public law or a special fund under public law, the competent courts in the place of our company’s registered office shall be the place of jurisdiction for all disputes. However, we shall also be entitled to take legal action against the business partner at his general place of jurisdiction.
The business partner’s rights under this contract are not transferable. These general terms and conditions are subject exclusively to the laws of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.