Section 1: Scope of application; conflicting terms

(1) These General Terms of Delivery and Payment (hereinafter referred to as the ‘GTDPs’) apply to all of our business relationships with our customers (hereinafter referred to as the ‘Buyer’). The GTDPs apply only where the Buyer is an entrepreneur (within the meaning of Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The GTDPs apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter referred to as ‘Goods’), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (as per Sections 433 and 650 of the BGB). Unless agreed otherwise, the GTDPs in the version valid at the time the Buyer places their order or, in any case, in the version last communicated to the Buyer in text form also apply as a framework agreement to similar future contracts, without us having to refer to them again in each individual case. We shall notify the Buyer immediately of any modifications to our GTDPs.

(3) Our GTDPs apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions issued by the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to the validity of the same. This consent requirement applies in all cases, including where the Buyer refers to their General Terms and Conditions when placing an order and we do not expressly object to the same.

(4) Individual agreements (such as framework supply contracts) and information given in our order confirmation shall take precedence over the GTDPs. In case of doubt, trade terms shall be construed in accordance with the Incoterms® published by the International Chamber of Commerce (ICC) in Paris in the version valid at the time the contract is concluded.

(5) Any legally relevant declarations and notifications that the Buyer makes in relation to the contract (such as setting deadlines, reporting defects, withdrawing from the contract or reducing the price) must be made in writing. For the purposes of these GTDPs, ‘in writing’ encompasses both the written form and the text form (e.g. letter, email, fax). Statutory formal requirements and any further evidence required – particularly where there is doubt concerning the legitimacy of the declarant – remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Accordingly, the statutory provisions apply even without such clarification unless they are directly modified or expressly excluded in these GTDPs.

Section 2: Conclusion of the contract

(1) Our quotations are subject to change and are non-binding. This applies even where we have provided the Buyer with catalogues, technical documentation (such as drawings, plans, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – over which we reserve proprietary rights and copyrights.

(2) The Buyer’s purchase order for Goods shall constitute a binding offer to enter into a contract. Unless the purchase order indicates otherwise, we are entitled to accept this contractual offer within five days of receiving the same.

(3) We may accept the offer either in writing (e.g. by means of order confirmation) or by delivering the Goods to the Buyer.

Section 3: Price and terms of payment

(1) Unless agreed otherwise in individual cases, our prices that are valid at the time the contract is concluded shall apply, quoted ex works (EXW Incoterms 2020) and inclusive of bottles and packaging, plus value-added tax at the statutory rate and, where applicable, statutory sparkling wine tax. The prices are quoted in euros.

(2) In the case of a sale by dispatch (as per Section 5 (1)), the Buyer shall bear the transport costs ex works and the costs of any transport insurance the Buyer requests. The Buyer shall also bear any customs duties, fees, taxes and other public charges.

(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, we remain entitled at any time, even within an ongoing business relationship, to make delivery wholly or partly conditional on advance payment. We shall declare any such reservation in our order confirmation at the latest.

(4) The Buyer will be in default upon expiry of the aforementioned payment period. During the period of default, interest shall accrue on the purchase price at the applicable statutory default rate. We reserve the right to claim further damages arising from the default. As against merchants, our entitlement to commercial interest on maturity (as per Section 353 of the German Commercial Code (HGB)) remains unaffected.

(5) The Buyer is only entitled to offsetting or retention rights to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counterclaims remain unaffected, particularly pursuant to the second sentence of Section 7 (5) of these GTDPs.

(6) Where, following conclusion of the contract, it becomes apparent (e.g. through the filing of a petition for insolvency proceedings) that our entitlement to the purchase price is at risk due to the Buyer’s lack of solvency, we may refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – withdraw from the contract (as per Section 321 of the BGB). For contracts concerning the manufacture of non-fungible goods (custom-made items), we may declare our withdrawal from the contract immediately. The statutory provisions regarding the dispensability of a deadline remain unaffected. 

Section 4: Delivery period and delay in delivery

(1) The delivery period shall be agreed upon individually or specified by us upon acceptance of the order. Where neither applies, the delivery period is three weeks from conclusion of the contract.

(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of Goods), we shall inform the Buyer immediately and communicate a new estimated delivery date. If the Goods are not available even within the new delivery period, we shall be entitled to withdraw from the contract either in whole or in part. We shall refund any consideration already provided by the Buyer without delay. Non-availability of the Goods includes, for example, failure to receive timely delivery from our suppliers, failure to conclude a congruent hedging transaction, other disruptions in the supply chain due to force majeure, or situations where we are not obligated to procure the Goods in a specific case.

(3) Whether we are in delay of delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required.

(4) The Buyer’s rights pursuant to Section 8 of these GTDPs and our statutory rights – in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) – remain unaffected.

Section 5: Delivery; transfer of risk; delay in acceptance; partial deliveries

(1) We shall deliver the Goods ex works (EXW Incoterms 2020), which is also the place of performance for the delivery and any subsequent performance. We shall dispatch the Goods to another destination (sale by dispatch) at the Buyer’s request and expense. Unless agreed otherwise, we are entitled to determine the method of dispatch ourselves (in particular the carrier, shipping route and packaging). We shall only arrange transport insurance at the Buyer’s express request. The Buyer shall bear any resulting costs.

(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer on delivery at the latest. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the Goods, as well as the risk of delay, shall pass when we deliver the Goods to the carrier, freight forwarder, or other person or entity designated to carry out the shipment. Delivery is deemed to have occurred if the buyer is in default of acceptance.

(3) Where the Buyer falls into default of acceptance or fails to cooperate, or where our delivery is delayed for other reasons that the Buyer is responsible for, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs).

(4) We are entitled to make partial deliveries where the partial delivery is usable for the Buyer within the scope of the contractual purpose, delivery of the remaining ordered Goods is assured and this does not result in significant additional effort or costs to the Buyer (unless we agree to bear these additional costs). 

Section 6: Retention of title

(1) We shall retain title to the Goods sold until full payment of all our present and future claims arising from the purchase contract and from any ongoing business relationship (secured claims).

(2) Goods that are subject to retention of title may not be pledged to third parties or transferred as security before the secured claims are paid in full. The Buyer shall notify us immediately and in writing if an application for the opening of insolvency proceedings is filed or where third parties take enforcement action (e.g. attachment) against Goods belonging to us.

(3) In the event of a breach of contract by the Buyer, particularly by failing to pay the purchase price when due, we shall be entitled, in accordance with statutory provisions, to withdraw from the contract and/or demand return of the Goods based on our retention of title. A demand for return does not automatically constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the Goods and reserve our right to withdraw from the contract. If the Buyer fails to pay the purchase price when due, we may only exercise these rights if we have previously set the Buyer an appropriate deadline for payment without success, or if setting such a deadline is unnecessary in accordance with the statutory provisions.

(4) Until revocation as per (c) below, the Buyer shall be authorised to resell and/or process the Goods that are subject to retention of title in the ordinary course of business. In this case, the following provisions shall additionally apply:

(a) The retention of title extends to products resulting from processing, mixing or combining our Goods, at their full value, with us being considered the manufacturer. If, in the case of processing, mixing, or combining with goods belonging to third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the goods processed, mixed or combined. The same shall apply to the resulting product as to Goods that are delivered subject to retention of title.

(b) The Buyer hereby assigns to us, as security, either in whole or to the extent of our co-ownership share as per the preceding paragraph, all claims against third parties arising from the resale of the Goods or products. The claims arising from a resale include claims against any bank that, in the context of the resale, has opened or confirmed a letter of credit in favour of the Buyer (= reseller). We accept this assignment. The Buyer’s obligations set forth in (2) shall also apply in consideration of the assigned claims.

(c) The Buyer remains authorised to collect the claims alongside us. We undertake not to collect the claims provided that the Buyer meets its payment obligations to us, there are no shortcomings in its ability to pay, and we have not asserted our retention of title by exercising a right pursuant to (3). However, if any of these conditions are met, we may require the Buyer to disclose the assigned claims and their debtors to us, provide all the information necessary for collection, hand over the related documents and notify the debtors (third parties) of the assignment. We shall also be entitled in this case to revoke the Buyer’s authority to resell and process the Goods that are subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choosing at the Buyer’s request. 

Section 7: The Buyer’s claims for defects

(1) Unless stipulated otherwise below, the statutory provisions apply to the Buyer’s rights in the event of material defects and defects of title, including incorrect or short deliveries. In all cases, the statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the BGB) and the Buyer’s rights arising from separately issued guarantees remain unaffected.

(2) Our liability for defects is based primarily on the agreement reached concerning the quality and intended use of the Goods. All product descriptions and specifications that form part of the individual contract or were made publicly known by us (particularly in catalogues or on our website) at the time of the contract conclusion, shall constitute an agreement as to quality for this purpose. Where the quality has not been agreed upon, the statutory provisions determine whether or not a defect exists (as per Section 434 (3) of the BGB). Public statements made either by the manufacturer or on its behalf – particularly in advertising or on the Goods’ labelling – shall take precedence over statements made by other third parties. The formation of a natural level of wine stone in the sparkling wine in the form of crystals or flakes does not constitute a defect. These are salts of tartaric acid that occur particularly in high-quality wines.

(3) We are not generally liable for defects that the Buyer knew about at the time of conclusion of the contract or that the Buyer failed to know about due to gross negligence (as per Section 442 of the BGB). Furthermore, the Buyer’s defect claims require that they have complied with their statutory obligations to examine the Goods and notify us of defects (as per Sections 377 and 381 of the HGB). For Goods intended for further processing, examination must in any case take place immediately before processing. If a defect becomes apparent upon delivery, during examination or at any later time, the Buyer must notify us immediately in writing. In any case, obvious defects must be reported in writing within seven working days of delivery, and defects that are not recognisable on examination must be reported in writing within the same period from the date of discovery. If the Buyer fails to examine the Goods properly and/or report defects, our liability for any defect not reported, or not reported in good time or properly, shall be excluded in accordance with the statutory provisions.

(4) If the delivered Goods are defective, we may initially choose whether to remedy the defect by repair (subsequent improvement) or by delivering a defect-free item (replacement delivery). Where our chosen method of subsequent performance is unreasonable for the Buyer in a particular case, the Buyer may reject it. Our right to refuse the subsequent performance pursuant to statutory provisions remains unaffected.

(5) We are entitled to make the owed subsequent performance conditional on the Buyer paying the purchase price when due. The Buyer is, however, entitled to retain a reasonable proportion of the purchase price commensurate with the defect.

(6) The Buyer shall give us the necessary time and opportunity to carry out the owed subsequent performance and shall, in particular, hand over the rejected Goods for inspection purposes. In the case of replacement delivery, the Buyer shall, at our request, return the defective items to us in accordance with statutory provisions; however, the Buyer has no right to return the items.

(7) Where a defect actually exists, we shall bear or reimburse the expenses necessary for inspection and subsequent performance – particularly transport, travel, labour and material costs – in accordance with the statutory provisions and these GTDPs. Otherwise, we may require the Buyer to reimburse us for costs arising from an unjustified request to remedy defects, provided that the Buyer knew or ought to have recognised that no defect actually existed.

(8) Where a reasonable period that the Buyer sets for subsequent performance expires without success, or where such a period is unnecessary in accordance with the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of withdrawal in the case of an insignificant defect.

(9) The Buyer’s claims for reimbursement of expenses pursuant to Section 445a (1) of the BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (as per Sections 478 and 474 of the BGB). The Buyer’s claims for damages or reimbursement of futile expenses (as per Section 284 of the BGB) exist, even when there are defects in the Goods, only in accordance with Sections 8 and 11 below. 

Section 8: Other liability

(1) Unless these GTDPs – including the provisions below – stipulate otherwise, we shall be held liable for breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be held liable for damages – on whatever legal basis – within the scope of of fault-based liability for fault in cases of intent and gross negligence. In cases of simple negligence, we shall be held liable, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), only for:

a) damages resulting from injury to life, body or health;

b) damages resulting from the breach of a material contractual obligation (an obligation, the fulfilment of which is necessary for the proper performance of the contract and on compliance with which the other party regularly relies and may rely); in such a case, however, our liability shall be limited to compensation for foreseeable and typical damage.

(3) The limitations of liability arising from (2) shall also apply to third parties and to breaches of duty by persons (including for their benefit) for whose fault we are responsible under statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee has been given concerning the quality of the Goods, and nor shall they apply to claims asserted by the Buyer under the German Product Liability Act.

(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach. The Buyer’s right of termination at will (particularly pursuant to Sections 650 and 648 of the BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

Section 9: Intellectual property rights

We are not liable for violations of third-party rights arising from affixing the Buyer’s own brands or other labels requested by the Buyer to the Goods or their packaging. Should we be held liable by third parties in such cases for infringement of trademark, labelling or competition law, or for infringement of other intellectual property rights, the Buyer is obligated to indemnify us against such claims.

Section 10: Value-added tax in cross-border cases

(1) Where a buyer domiciled outside the Federal Republic of Germany (foreign customer), or their representative, collects the Goods or transports or dispatches them abroad, the Buyer shall provide us with the evidence of export required for tax purposes. Where such evidence is not provided, the Buyer shall pay the value-added tax (VAT) applicable to deliveries within the Federal Republic of Germany on the invoice amount.

(2) For deliveries from the Federal Republic of Germany to other EU member states, the Buyer shall provide us with their VAT identification number under which they conduct acquisition tax within the EU. Otherwise, the Buyer shall pay the VAT amount owed by us on our deliveries in addition to the agreed purchase price.

(3) When invoicing deliveries from the Federal Republic of Germany to other EU member states, the VAT regulations in the relevant recipient member state shall apply where either the Buyer is registered for VAT in another EU member state or we are registered for VAT in the recipient member state.

Section 11: Period of Limitation

(1) Notwithstanding Section 438 (1) no. 3 of the BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. Other special statutory provisions regarding limitation periods also remain unaffected (particularly Section 438 (1) no. 1, (3) and Sections 444 and 445b of the BGB).

(2) The aforementioned limitation periods under sales law shall also apply to the Buyer’s contractual and non-contractual claims for damages based on a defect in the Goods, unless applying the regular statutory limitation period (as per Sections 195 and 199 of the BGB) would result in a shorter limitation period in a specific case. The Buyer’s claims for damages pursuant to Section 8 (2) Sentences 1 and 2(a) and under the German Product Liability Act are subject exclusively to the statutory limitation periods.

Section 12: Choice of law and place of jurisdiction

(1) German law applies to these GTDPs and the contractual relationship between us and the Buyer, to the exclusion of international uniform law and, in particular, the UN Convention on Contracts for the International Sale of Goods.

(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, our registered office in Trier shall be the exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship. The same applies where the buyer is an entrepreneur within the meaning of Section 14 of the BGB. However, we also remain entitled in all cases to bring proceedings at the place of performance of the delivery obligation under these GTDPs or any prior individual agreement, or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, particularly those concerning exclusive jurisdictions, remain unaffected.