General Terms and Conditions of Delivery and Payment – Current as at 1 January 2020 –

§ 1 Scope, conclusion of contract, conflict of terms

(1)        These General Terms and Conditions of Delivery and Payment (hereinafter “GTC”) shall apply to all our business relationships with our customers (hereinafter "Buyer(s)"). These GTC shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of Section 310 para. 1 BGB (German Civil Code).

(2)        Our GTC shall apply, in particular, to contracts on the sale and/or supply of moveable things (hereinafter “Goods”), regardless of whether whether we produce or manufacture the Goods ourselves or procure them from suppliers (Sections 433, 651 BGB). The GTC shall apply in such version as in effect from time to time as a framework agreement also for future contracts on the sale and/or supply of Goods with the same Buyer, without there being a requirement for us to reference them in each case; we will inform the Buyer of any modification of our GTC without undue delay.

(3)        Our offers are without obligation and non-binding. An order of the Goods by the Buyer shall be deemed a binding offer for a contract. Our acceptance of such offer may be expressed in writing (e.g. by confirmation of order) or by shipping the Goods to the Buyer. Confirmation of order can also be given in the form of an invoice being issued by us.

(4)        Our GTC shall apply exclusively. Any deviating, opposing or supplementary General Terms and Conditions of the Buyer shall become part of the contract only where and to the extent that we have agreed thereto in express terms.

(5)        Legally relevant declarations and notices that the Buyer shall submit to us following the conclusion of the contract (e.g. setting of deadlines, notices of defects, declarations of revocation or price reduction) shall be in writing to enter into effect.

§ 2 Prices and Payment

(1) The applicable prices on the date of delivery shall apply. Prices are in EURO.

(2) Unless otherwise specified in the order confirmation, all prices shall be ex warehouse (EXW Incoterms 2020) and include glass and packaging but exclude sparkling wine tax and any other taxes or duties, in particular the statutory value-added tax.

(3)        In the event of Sale by Dispatch (§ 3 (1) of the GTC), the Buyer shall bear the transport costs ex warehouse. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

(4)        The purchase price is to be paid in advance. Any variations to these payment terms shall require express written agreement.

(5)        The Buyer is in default on receipt of our reminder in response to wilful non-payment of a due invoice. The Buyer shall also be considered in default, on account of non-adherence to a contractually agreed payment deadline, if no reminder is sent. The Buyer shall automatically be in default at the latest - again without reminder - thirty calendar days after receipt of the invoice or an equivalent request for payment. In the event of default, the purchase price shall be subject to statutory default interest during such default. We reserve all rights to claim further damages for default. This shall be without prejudice to our right to claim commercial maturity interest from merchants pursuant to Section 353 HGB (German Commercial Code).

(6)        The Buyer shall have rights to set-off or retention only to such extent as the Buyer’s counterclaim has been confirmed by a legally binding binding judgement or is undisputed. If the Goods are defective the Buyer’s counterclaims, in particular the provisions under § 7 of these GTC, shall remain unaffected.

§ 3 Delivery and Passing of risk

(1)        Delivery shall be ex warehouse (EXW Incoterms 2020), which shall also be the place of performance. At the request and cost of the Buyer, the Goods will be shipped to another destination (Sale by Dispatch). In the absence of any provisions to the contrary, we shall be entitled to determine ourselves the type of shipping (particularly with respect to the carrier, mode of shipping and packaging).

(2)        Not later than upon shipping, the risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer. In the case of Sale by Dispatch, however, the risk of accidental loss or accidental deterioration of the Goods, as well as the risk of delay, shall pass to the Buyer at the time the Goods are handed over to the forwarder, carrier or other person or body specified to carry out the shipment. The Goods shall be deemed to be handed over to the Buyer once the Buyer gets in default in acceptance. If our delivery is delayed for reasons for which the Buyer is responsible, the risk passes to the Buyer upon our notice of readiness for dispatch of the Goods. Should dispatch be subject to special instructions from the Buyer, the risk shall pass to the Buyer upon our notice of readiness for dispatch of the Goods.

(3)        We are not obliged to provide for a transport insurance for the Goods.

(4)        We shall be entitled to effect partial deliveries provided that the Buyer is able to use such partial delivery, delivery of the remaining Goods is ensured, and this will not cause the Buyer substantial additional work or costs (unless we agree to bear these additional costs).

§ 4 Delivery period and default

(1)        The delivery period shall be agreed upon individually and/or specified by us at the time of acceptance of the order. Otherwise, the delivery period shall be approximately three weeks from the time of conclusion of the contract and the date of receipt of purchase price in accordance with § 2 (4) of these GTC.

(2)        If we fail to meet binding delivery periods for reasons for which we are not responsible (Non-availability of Goods), we will inform the Buyer thereof as well as of the foreseeable new delivery period without undue delay. If the Goods are not available even within the new delivery period, we shall be entitled to withdraw from the contract in full or in part; any consideration already received by us from the Buyer will be returned immediately. A case of Non-availability of Goods in this context shall occur, in particular, if we are not supplied in time by our supplier without our fault or our supplier’s fault.

(3)        Whether or not a default in delivery has occurred shall be subject to the statutory provisions. At any rate, a reminder from the Buyer shall be required.

(4)        The Buyer’s rights under § 7 of these GTC as well as our statutory rights, in particular the statutory provisions on the exclusion of the duty of performance (e.g. impossibility or unreasonableness of service and/or subsequent performance), shall remain unaffected.

§ 5 Retention of title

(1)        Title to the delivered Goods shall not pass to the Buyer until he has fulfilled all obligations arising from, or yet to arise from our business relationship with the Buyer, including any incidental claims, claims for damages and redemption of checks or bills of exchange. This retention of title shall also continue in the event that individual claims are aggregated by us into an open account and the balance is recognized by the parties.

(2) The Buyer shall be entitled to utilize the purchased Goods in the course of conducting his normal business. The Buyer hereby transfers to us in advance all claims with ancillary and collateral rights arising from the resale of the Goods subject to retention of titlte, including bills of exchange and checks, as security for all of our claims against the Buyer. This shall also apply to claims for the account balance at the end of an accounting period in the event that the Buyer has agreed an open account relationship with his contract partner. The Buyer hereby also transfers to us any claims for damages against insurers or third parties arising from damage to the delivered Goods that are still subject to retention of title. In the event that the Buyer has incorporated into his assets any received amounts, in particular through a deposit in a financial institution, the Buyer hereby transfers to us the acquired payment as security. We hereby accept the aforementioned assignments of claims.

(3) The Buyer shall also entitled to collect any assigned claims arising from the resale until we revoke this entitlement. We shall make no use of this right of revocation as long as the Buyer does not default in payment, does not have insolvency proceedings instigated against him, and no other deficiency exisits in respect of his capacity to perform and as long the Buyer does not breach any of the contractual agreements or provisions of these GTC, in particular the obligations arising out of the retention of title.

(4)        The Buyer shall not be authorized to pledge or assign as security any Goods subject to retention of title nor to assign any claims out of the resale of the Goods subject to rention of title. The Buyer shall be required to inform us immediately in writing of any pledge or other impairment of the Goods subject to retention of title.

(5)        The retention of title shall not release the Buyer from his liability for the coincidental loss or damage to the Goods following passing of the risk.

(6)        Should the value of the securities exceed the value of our claims by more than 10 %, we shall release the excess securities. Selection of the securities to be released shall be executed by us.

(7) Should the Buyer default in payment or not meet his obligations arising from the retention of title, we shall be entitled to demand the return of the Goods subject to retention of title and, after giving suitable notice with a reasonable grace period, commercially exploit these Goods through direct sale and credit the proceeds of sale against the purchase price.

(8) If we demand return of the Goods subject to retention of title, we shall be entitled to invoice the Buyer for an adequate amount (normally, a flat-rate 15 % of the contract value) as compensation for the costs incurred by recalling the Goods. We expressly reserve our right to assert further claims.

§ 6 Deterioration of assets

  If there are indications after conclusion of the contract (e.g. by an application for opening of insolvency proceedings) that our entitlement to the purchase price is at risk because of the Buyer’s inability to pay, then we shall be entitled according to the statutory provisions to refuse service and – after setting a deadline where necessary – to withdraw from the contract (Section 321 BGB – German Civil Code). In case of contracts for the manufacture of specific items (custom-made products), we may withdraw from the contract immediately; the statutory provisions concerning the dispensability of deadlines shall remain unaffected.

§ 7 Rights of the Buyer in case of defects

(1) The primary foundation of our liability for defects shall be any agreement reached on the quality of the Goods. Such agreement on the quality of the Goods shall include all product descriptions and specifications. However, we shall not accept liability for any public utterances or advertising of the manufacturer or any other third party. Where no agreement on quality of the Goods exists, any assessment as to whether defects exist or not shall be subject to statutory provisions (Section 434 para. 1 sent. 2 and 3 BGB). The formation of a natural level of wine stones in the sparkling wine, in the form of crystals or flakes, shall not constitute a defect. These are salts of tartaric acid that arise in particular in high quality wines.

(2) For the Buyer to have legitimate claims for defects, he shall have complied with his statutory obligations to examine and report (Section 377 HGB). If a defect is discovered during the inspection or subsequently, a written notice thereof shall be sent to us without undue delay, at the latest within two weeks of arrival of the Goods. Regardless of the aforementioned Buyer’s obligation to examine and report, the Buyer shall report in writing

a)  apparent defects within two weeks of delivery of the Goods, and

b)  non-apparent defects within two weeks of their discovery, however, not later than six months after delivery of the Goods.

The Buyer as a company shall bear the full burden of proof for all the prerequisites for making a claim, in particular for the defect itself, for the time at which the defect was determined, and for the timeliness of the notice of defect. If the Buyer fails to conduct an inspection and/or report a defect in proper time, our liability for such defect not reported shall be excluded.

(3)        If the Goods delivered are defective, we may initially choose whether to effect subsequent performance by removing the defect (subsequent improvement) or by delivering non-defective Goods (subsequent delivery). Our right to refuse subsequent performance pursuant to statutory provisions shall remain unaffected.

(4)        We are entitled to make subsequent performance contingent upon the Buyer’s payment of the due purchase price.

(5)        The Buyer has the duty to give us time and occasion for the subsequent performance owed. The Buyer, in particular, shall hand over to us the Goods in question for testing purposes. In the event of subsequent delivery, the Buyer shall return to us the defective Goods pursuant to statutory provisions. Rejected Goods must only be returned with our express written consent. Returnable bottles, where returned unopened, will be reimbursed to the Buyer for their full value including sparkling wine tax.

(6)        The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, shipping, labour and material costs, shall be borne by us if, in fact, a defect exists. However, should the Buyer’s demand for subsequent performance be shown to be unsubstantiated, we shall be entitled to demand compensation.

(7)        If subsequent performance has failed, or if a reasonable grace period to be set by the Buyer has passed unsuccessfully, or if it is dispensable under statutory provisions, the Buyer may reduce the purchase price or withdraw from the contract. Where the breach of contract is only minor, in particular in the case of minor defects, the Buyer shall not be entitled to withdraw from the contract.

(8)        Should the warranty involve a recourse of the Buyer, who has successfully based his claim on the statutory provisions relating to the sale of consumer goods, the recourse claims shall remain unaffected by the provisions relating to the sale of

   consumer goods (supplier recourse pursuant to Sections 478, 479 BGB). Claims of the Buyer for damages and/or compensation for futile expenditure are subject to § 8 of these GTC. The Buyer is obligated to inform us without undue delay of any case for recourse within the supply chain. Statutory recourse claims of the Buyer shall only exist insofar as the Buyer has not entered into any agreements with the consumer that go beyond the statutory warranty claims.

(9)        Any guarantee agreement must be in writing. A guarantee shall only be valid if it adequately defines and describes the substance of the guarantee along with its duration and geographical scope.

(10) Claims of the Buyer for damages and/or compensation for futile expenditure shall exist only in accordance with § 8 of these GTC and are otherwise excluded.

§ 8 Other liability

(1)        Unless these GTC and the following provisions state otherwise, we shall be liable for breaches of contractual and non-contractual obligations according to the relevant statutory provisions.

(2)        We shall be liable for damages caused intentionally or through gross negligence, regardless of the legal grounds. In the event of minor negligence, we shall be liable only

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

b)  for damages resulting from breaches of a substantial contractual obligation (obligation the proper fulfillment of which is necessary to enable the contract to be executed at all and on the fulfillment of which the Buyer regulary relies and may rely); in such event, our liability shall be limited to compensation for the foreseeable and typical damage.

(3)        The liability limitations derived from para. 2 shall not apply where we have concealed a defect maliciously or have guaranteed the quality of the Goods. The same shall apply to the Buyer’s claims under the German Product Liability Act.

(4)        A breach of duty that does not consist of a defect shall enable the Buyer to withdraw only if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to Sections 651, 649 BGB) shall be excluded. In other respects, the statutory requirements and legal consequences shall apply.

§ 9 Intellectual property rights of third parties

  We shall not be liable for any breaches of third party rights that may arise from the application of the Buyer's own brand or other desired designations to the Goods or the packaging thereof; should a claim be brought against us by a third party in respect of a breach of brandname protection, trademarks, competition regulations or any other intellectual property rights, the Buyer shall be obligated to release us from such claims.

§ 10 Period of limitation

(1)        In deviation from Section 438 para. 1 no. 3 BGB, the general period of limitation for claims arising from material defects and defects in title shall be one year from delivery. Where acceptance has been agreed, the limitation period shall commence upon acceptance.

(2)        Any special statutory provisions on restitution of property of third parties (Section 438 para. 1 no. 1 BGB), on fraudulent concealment by the seller (Section 438 para. 3 BGB), and on rights for claims of recourse against the supplier in case of final deliveries to a consumer (Section 439 BGB) shall remain unaffected.

(3)        The aforementioned limitation periods under laws on sales shall also apply to contractual and non-contractual claims

   for damages of the Buyer that are based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. The limitation periods under the German Product Liability Act shall remain unaffected in any case. Apart from this, the Buyer’s claims for damages pursuant to § 8 of these GTC shall be subject exclusively to the statutory limitation periods.

§ 11 Sales tax in cross-border sales

(1)        Where a Buyer who is resident outside the Federal Republic of Germany (foreign client), or his representative, collects the Goods and transports or sends it abroad, the Buyer must furnish us the necessary export declaration under tax law. Should this declaration not be provided, we must add to the invoice amount the value-added tax applicable within the Federal Republic of Germany.

(2) In the case of deliveries from the Federal Republic of Germany to other EU member states, the Buyer must provide us with his VAT identification number as utilized for purchase taxation purposes within the EU. Otherwise, the Buyer must pay, in addition to the agreed purchase price, the VAT amount payable by us in relation to the delivery.

(3) For the settlement of delivery from the Federal Republic of Germany to other EU member states, the applicable VAT regulations of the respective recipient member state shall apply in the event the Buyer is registered for VAT in another EU member state, or we are registered for VAT in the recipient member state.

§ 12 Place of performance, jurisdiction and miscellaneous terms

(1) The place of performance for all services arising out of this contractual relationship is Trier.

(2) The exclusive place of jurisdiction for any disputes arising out our business relationship with the Buyer shall be Trier if the Buyer is a merchant as defined under the German Commercial Code, a corporate body under public law, or a public-law special fund. The same shall apply if the Buyer does not have a general place of jurisdiction within Germany, or if the domicile or usual residence of the Buyer is not known at the time of commencement of proceedings.

(3)        The laws of the Federal Republic of Germany shall apply to all legal relationships existing between us and the Buyer to the exclusion of all international and supranational (contract) laws, particulary the CISG.

(4) Verbal agreements shall only be legally enforceable if confirmed by us in writing.