General Terms and Conditions
Reh Kendermann GmbH Weinkellerei, Am Ockenheimer Graben 35,
D-55411 Bingen am Rhein
– Version: 11. November 2014
Art. 1 Scope
We provide our services subject exclusively to the following General Terms and Conditions. Opposing or conflicting general terms and conditions from other companies are not to be used, unless we have accepted these in writing. This approval requirement applies in all events, for example also when we have effected delivery to the buyer unconditionally despite being aware of the buyer’s GT&C. Our General Terms and Conditions also apply to future business transactions.
Art. 2 Offers, conclusion of contract, documents
(1) An order placed by the buyer is considered a binding offer. Offers from buyers are considered accepted by us if we have confirmed them in writing or supplied goods or services. Unless otherwise stated in the order, we are entitled to accept an offer submitted to us within two weeks after receiving it.
(2) Our offers are subject to change and are non-binding. This also applies when we have given the buyer catalogues, technical documentation (e.g. also computations, evaluations, calculations), other product descriptions or documents – including in electronic forms – to which we reserve property and copyrights.
(3) We are entitled to capture, store and process any customer data transmitted to us, with data processing equipment.
Art. 3 Prices and terms of payment
(1) Our prices are calculated ex our head office in 55411 Bingen am Rhein, Germany and contain neither transport nor packing costs unless otherwise stated in the order confirmation. Our prices do not include value added tax unless this is explicitly specified
(2) Our invoices are payable net without deduction immediately. The consequences of payment default are those stipulated in statutory provisions.
(3) We only accept bills of exchange as a means of payment after special agreement. Cheques and bills of exchange are only accepted on account of performance; these must be transmitted to us free of charges.
(4) The buyer only has rights of offsetting and retention vis-à-vis our payment claims if his claim is undisputed and has been legally determined. In the event of defects in the delivery, the buyer’s counter claims, in particular according to Art. 7 (4) sentence 2 of these General Terms and Conditions, are not affected.
Art. 4 Delivery times; default in acceptance
(1) The delivery date is agreed upon in individual cases or specified by us when accepting the order. Should this not be the case, goods will be delivered approx. four weeks from conclusion of contract.
(2) If the buyer is in default of acceptance, we are entitled to demand compensation, in particular due to possible additional expenses (e.g. storage costs).
Art. 5 Transfer of risk
Delivery is made from our business premises in 55411 Bingen am Rhein, Germany which is also the place of fulfilment. At the buyer’s request and expense, the goods will also be sent to a different location (sales shipment). The risk of accidental loss or accidental deterioration of the goods is transferred to the buyer no later than when the goods are handed over. In the case of sales shipment, the risk of accidental loss or accidental deterioration as well as the risk of delay is transferred as soon as the goods are handed over to the carrier, freight forwarder or the person or institution designated to effect shipment. If the customer desires, we will also insure our goods at the customer’s expense for possible shipment.
Art. 6 Retention of title
(1) Until our present and future receivables from the purchase contract and from an ongoing business relationship (secured receivables) have been paid in full, we retain title to the goods sold.
(2) Goods subject to the retention of title may neither be pledged to third parties, nor assigned as security until the secured receivables have been paid in full. If third parties attach the goods belonging to us, the buyer will inform us in writing immediately.
(3) Should the buyer conduct himself in a manner contrary to the contract, in particular, non-payment of the due purchase price, we are entitled to withdraw from the contract pursuant to legal provisions and demand the return of the goods based on the retention of title and withdrawal. If the buyer fails to pay the due purchase price, we may only assert these rights if we have unsuccessfully set the buyer a reasonable deadline for payment or setting a deadline is dispensable under legal provisions.
(4) The customer is entitled to resell and/or process goods subject to retention of title in the context of the normal course of business. In this case, the following provisions shall additionally apply.
(a) The retention of title includes the products created by processing, mixing or combining our goods to their full value whereby we are deemed the producer. If processing, mixing or combining involves goods of third parties whose rights remain intact, then we will acquire co-ownership in proportion to the invoice amounts of the processed, mixed or combined goods. Otherwise, the same applies to the created product as applies to the delivered goods subject to retention of title.
(b) The buyer now already assigns claims against third parties arising from the resale of the goods or the product to us in their full amount or in the amount of our possible co-ownership share according to the previous paragraph as security. We accept this assignment. The buyer’s duties specified in Art. 6 (2) of these GT&C also apply to the assigned claims.
(c) Apart from us, the buyer is authorised to collect the receivables. We undertake not to collect the receivables and disclose the assignment as long as the customer meets his payment obligations towards us, does not default on payment, does not apply for the initiation of insolvency proceedings and there is no other lack of the customer’s ability to pay. However, should this be the case, we are expressly entitled to collect the receivables ourselves and disclose the assignment. The customer is then obligated, upon first request, to provide us with the names and addresses of his debtors as well the amount of debt and all other information necessary to assert the claim.
(d) We undertake to release the securities we are entitled to at the customer’s request if the realisable value of our securities exceeds the value of the receivables to be secured by more than 10%. We have the right to choose the securities to be released.
Art. 7 Warranty, limitation of liability and statutes of limitation
(1) Legal provisions apply to the buyer’s right in the case of material and legal defects unless otherwise stipulated in the following. Special legal provisions relating to the final delivery of goods to a consumer (supplier recourse according to Art. 478, 479 BGB [German Civil Code]) are not affected.
(2) The buyer’s warranty claims pre-require that he has met his obligation to examine and make notification according to Art. 377 HGB [German Commercial Code]. If the buyer fails to conduct the proper examination and/or fails to make notification of defect, our liability for the defect that was not reported is excluded.
(3) If the delivered item is defective, we can initially choose whether to provide supplementary performance by removing the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under legal conditions remains unaffected.
(4) We are entitled to make the supplementary performance owed dependent on the buyer paying the outstanding purchase price. The buyer, however, is entitled to retain a portion of the purchase price which is reasonable in relation to the defect. The buyer must afford us the time and opportunity necessary for the supplementary performance owed, in particular, to return the defective goods for purposes of inspection. In the event of replacement delivery, the buyer must return the defective goods to us in accordance with legal provisions. Expenses necessary for inspection and supplementary performance, in particular, transport, road, work and material costs, are borne by us if a defect actually exists. However, should it transpire that the buyer’s request for the removal of a defect is unjustified, we can charge the costs thus incurred to the buyer.
(5) If supplementary performance fails or if a reasonable deadline for supplementary performance to be set by the buyer has passed unsuccessfully or is dispensable according to legal provisions, the customer can lower the price or withdraw from the contract. In the case of a minor defect there is no right of withdrawal. Further warranty claims do not exist.
(6) The buyer’s claims for damages only exist subject to the following sub-paragraphs (a) and (b) and are otherwise excluded:
(a) We are only liable for compensation – irrespective of the legal reason – in the event of intent and gross negligence. In the case of slight negligence, we are only liable
- for damages from injury to life, limb or health,
- for damages from breaching an essential contractual obligation (an obligation whose fulfilment makes the implementation of the contract possible in the first place, and which the contracting party generally depends on or can depend on being adhered to); however, in this case our liability is limited to the replacement of the foreseeable damage that could typically arise. If there are no other indications which damages are foreseeable and typically arise, our liability is then three times the value of our performance (final invoice amount for the defective product or the defective service).
(b) The limitations of liability resulting from the above sub-paragraph (a) do not apply if we have maliciously concealed a defect or assumed a guarantee for the quality of the goods. The same applies to the buyer’s claims under the product liability law.
(7) Warranty claims against us become statute barred within one year.
Art. 8 Applicable law, legal venue
(1) For all differences of opinion and legal disputes arising in connection with the business relationship, German law applies exclusively under exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the customer is a merchant in terms of the commercial code, a legal person under public law or a special fund under public law, the exclusive – and also international – legal venue for all disputes in connection with the present business relationship as well as the place of fulfilment is 55411 Bingen am Rhein, Germany. However, we are also entitled to bring an action at the buyer’s general legal venue.
Bingen am Rhein, November 2014