General Terms and Conditions of Sale and Payment of Louis Guntrum Weinkellerei GmbH, 55283 Nierstein/Rhein
These General Terms and Conditions of Sale and Payment form the basis of all deliveries and services of Louis Guntrum Weinkellerei GmbH. We hereby expressly object to any purchasing conditions of the customer, unless they correspond to our terms and conditions; otherwise, they shall not even become part of the agreements with us if we do not object to them again after obtaining knowledge of them.
I. Offer, Conclusion of a Contract
1.) Save as otherwise agreed in writing in an individual case, our offers are not binding.
2.) All agreements with us on deliveries and services or alterations of and/or additions to such agreements must be made in writing and will only become binding subject to our written confirmation of the order that then shall also govern the scope of our delivery and service obligation.
3.) Representatives and agents of our firm are not authorized to act on behalf of Louis Guntrum Weinkellerei GmbH in legal transactions, unless with an express written power of attorney granted for an individual case. Any indications and promises made by the above-mentioned persons are not binding upon us, unless we have expressly confirmed them in writing.
II. Prices, Conditions
1.) Unless expressly otherwise agreed in writing, offers and/or sales are made subject to our prices and conditions respectively in force.
2.) Save as expressly otherwise agreed in writing, our prices are in Euro, ex wine cellars / warehouse, inclusive of glass and packaging, plus tax on sparkling wine and value-added tax at the legal rate, to the amount payable when due.
3.) Within the Federal Republic of Germany, we deliver assorted orders of not less than 60 bottles per order free buyer’s address; otherwise, we charge our effective freight costs.
4.1 Save as expressly otherwise agreed in writing, our invoices are due for payment within 14 days of the invoice date, delivery assumed. The amount required must be paid net cash into our accounts timely enough so that it will be available there without restriction on the above-mentioned due date. In the absence of other written agreement, deliveries abroad are exclusively made against prepayment or letter of credit (L/C).
4.2 From new customers or in case of first-time orders, we expect prepayment. In such cases, we send an advance invoice by post and make the delivery as soon as the invoice amount has been credited to our account indicated below, namely
Mainzer Volksbank eG
Neubrunnenstr. 2, 55116 Mainz
Account No. 623 763 018 – Bank Code No. (BLZ) 551 900 00
IBAN: DE30 551 900 000 623 763 018.
4.3 Payments by cheque and bill can only be made on the basis of written agreements and even then on account of performance only.
4.4 All of our claims shall be taken in on account of performance irrespective of the term and credited bills shall become immediately due in case contractual agreements, in particular agreements concerning payments, are not observed or we get knowledge of any circumstances reducing the buyer’s credit standing. In such cases, we shall also be entitled to perform any outstanding deliveries and services only against prepayment and/or shall be entitled to securities as customary according to type and scope for our claims even if the latter are conditional or limited in time. Moreover, we shall also be entitled, at our option, to rescind the contract or assert a claim for damages for non-performance after a reasonable period of time.
5.) Set-off or exercise of a right of retention shall only be admissible against claims of the buyer against us that are uncontested or have become res judicata. The same shall also apply in case of a deterioration of the financial position of the seller.
III. Deliveries / Dates
1.) Save as expressly otherwise agreed in writing, the sale of our products shall always be made ex wine cellars/warehouse; this does also apply when we have assumed to effect the delivery.
2.) Compliance with agreed periods and dates of delivery is subject to the reservation of receipt of deliveries on our part; in case deliveries are not received by us, we will immediately notify the buyer.
3.1 In the event the buyer is in default in taking delivery from us, the risk of deterioration and of accidental loss of the goods shall pass to the buyer upon occurrence of such default; such default shall not affect the buyer’s obligation to pay. In such cases, we moreover shall be entitled to charge all additional costs incurred to the buyer’s account.
3.2 Goods reported by us as ready for dispatch must be taken over by the buyer without delay, but not later than on the agreed date. In case of a failure to take over the goods within 5 working days of notification of readiness for dispatch or of the agreed delivery date, we can either send the goods to the customer or store them at the buyer’s expense. In such case, the purchase price / part of purchase price shall become immediately due for payment.
4. In case we are in default, the buyer may, after setting a reasonable additional period, withdraw from the contract to the extent the goods are not reported ready for dispatch until expiry of the additional period set. If a delay in deliver is attributable to a delay in delivery on part of our supplier, we must, at the buyer’s request, assign any claims we may have against such supplier to the buyer up to the amount of its damage. Any claims for damages based on default against us are excluded, unless the damage was caused by a wilful or grossly negligent breach of duty on part of our legal representatives, staff members or vicarious agents.
5. Unless expressly otherwise agreed in writing, we are entitled to make part deliveries.
IV. Retention of Title
1.) We retain title to the goods delivered until complete settlement of all of our claims (including ancillary claims) from the underlying contractual relationship of the delivery, i.e. ownership of the delivery item passes to the buyer only after/upon payment in full of our claims under this contractual relationship.
2.) If the legal system of the country to which the goods are delivered according to the agreement (= receiving country) does not recognize the above-agreed reservation of title, our buyer obliges himself, already upon concluding the contract of purchase/delivery, to create for the benefit of Louis Guntrum Weinkellerei GmbH a non-possessory lien or equivalent security right (e.g. mortgage) in the goods delivered in accordance with the legal regulations of the receiving country for securing our claims. That lien / security right shall expire upon complete payment.
3.) The buyer is obliged to keep our goods subject to retention of title applying the due care of a prudent businessman and to mark them as such. The goods subject to retention of title are to be insured against theft, breakage, fire, water and other damage by the elements at the buyer’s expense. The buyer hereby assigns to us his claims against his insurer by way of security.
4.) Until revoked, the buyer shall be entitled to sell the goods subject to retention of title within the scope of his usual and due course of business, provided he simultaneously assigns to us his claims against his customers from such resale. In view of the above, the buyer, already upon conclusion of the delivery contract with us, assigns his claims against a prospective customer to Louis Guntrum Weinkellerei GmbH which accepts such assignment. Until revoked, the buyer shall be entitled to collect the claims assigned as stated above as long as he fulfils his payment obligations towards our firm.
5.1 By processing the goods subject to retention of title, the buyer does not acquire title to the items manufactured as a whole or in part; the processing is made free of charge exclusively for the seller. If, however, the retention of title should become extinct due to any circumstance of whatever kind, it is already now understood between us and our buyer that title to the items will pass to us with the processing; we accept such transfer of title. The buyer continues to be our gratuitous custodian.
5.2 In a processing together with goods still owned by another, we acquire co-ownership of the new items. The scope of that co-ownership results from the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods.
5.3 The buyer hereby assigns to us the claims he may have from further processing; we accept such assignment.
5.4 We shall be obliged, at the buyer’s request, to release the securities we are entitled to under the contract at our choice to the extent the realizable value of such securities exceeds the value of the claims to be secured by more than 20%.
5.5 For asserting the retention of title, it is not necessary to withdraw from the contract, unless the customer is a consumer.
V. Warranty / Liability
1.) We warrant that, at the time of the passing of risk, the wines and viniculture products delivered by us correspond to the agreements made, the regulations of the Federal Republic of Germany and of the EU, are free from defects and are suitable without restriction for human consumption.
We do not assume warranties within the meaning of Art. 434 German Civil Code.
In case the regulations of the country of destination make any special requirements on fitness for importation and marketability, such requirements shall be exclusively at the buyer’s/importer’s expense, unless we have made express written agreements in that connection.
2.) The risk of accidental loss and deterioration of the goods shall pass to the buyer upon handing the goods over to the carrier/forwarder, even if we have assumed to effect the delivery.
3.) Any defects that are detectable in a due examination of the goods delivered must be notified to us in writing, by telex or telegram without delay, but not later than within 7 working days of arrival of the goods at the place of destination. Any defects that can only be detected at a later point of time (so-called hidden defects) are to be notified without delay then. Timeliness of a notification of defect depends on its receipt by Louis Guntrum Weinkellerei GmbH.
4.) For examining a complaint, we are entitled to demand that at least 2 specimens of the goods delivered are made available and to have them inspected and examined by a representative, if applicable.
5.) It is known to the buyer that wines and other products of viniculture must be treated with care and in particular protected from heat. We do not assume responsibility for defects caused by improper treatment.
6.) In case of a justified notification of defects, the buyer shall be entitled to a delivery of replacement. If that is not possible, the buyer shall have the legal rights and claims available.
7.1 As far as Louis Guntrum Weinkellerei GmbH is obliged to pay damages according to law or contract, it is only liable for grossly negligent or intentional fault of its legal representative, staff members and vicarious agents. Such claims for damages shall be moreover limited to compensation for the reasonably foreseeable direct damage; we are not liable for loss of profit.
7.2 If we are legally liable for damage from injury of life, body or health of a person or under the Product Liability Act, the above section 7.1 shall not apply to the extent it is in conflict with such liability.
7.3 Any further claims, as far as legally admissible, are excluded.
8.) Claims of the buyer, in particular warranty claims, shall become statute-barred 12 months after delivery; the same applies to claims for damages based on a defect, unless we can be blamed for fraudulent intent. In case of a contract of sale with a consumer, the respective legal provisions shall apply.
VI. Other Provisions
1.) We are entitled to store and process all data needed within the scope of performing the contractual relationship with the buyer, in particular personal data, and, if applicable, pass such data on for storage, processing and utilization.
2.) These General Terms and Conditions of Sale and Payment and all agreements between us and the buyer, the coming about of such agreements, their termination and all rights and obligations resulting from such agreements are exclusively governed by the laws of the Federal Republic of Germany.
3.) To the extent permitted by law, the national and international place of jurisdiction shall be the Regional Court of Mainz; however, we are also entitled to sue the buyer before his competent court.
4.) There have not been made any oral collateral agreements; any additions to and/or alterations of these terms and conditions as well as the contract concluded in an individual case must be made in writing to become effective.
5.) If any of the above provisions as well as any other provision of the contract between us and the buyer should – for whatever reason – become ineffective as a whole or in part, that shall not affect the effectiveness of the remaining provisions of the contract or of the contract as a whole. In such case, we and the buyer shall rather be obliged to agree, in place of the ineffective provision, on an effective one that leads to the same economic effect.
Nierstein, November 11th, 2020