General terms and conditions of sales, delivery and payment of wine in motion GmbH
The general terms and conditions of sales, delivery and payment hereinafter shall be decisive for all deliveries of goods to entrepreneurs and consumers (hereinafter called "buyers") by wine in motion GmbH, Kellerweg 4, D- 84494 Neumarkt-St Veit (hereinafter called "seller"), future business transactions included.
These general terms and conditions of sales, delivery and payment shall apply exclusively. General terms and conditions of buyers shall only apply insofar as the seller has expressly agreed in text form.
§2 Conclusion of contract
The order is a binding offer. The seller can accept this offer within 5 working days from receipt by sending an order confirmation or by consignation of the ordered goods.
Rates as listed in the price lists are quoted per bottle and in EURO. Prices are quoted with VAT included for consumers and net prices before VAT (currently 16%, from 01.01.2021 19%) for entrepreneurs respectively.
Prices differing from the respective price list shall be agreed between the parties and recorded in writing.
The seller reserves the right to increase the prices if delivery time of more than 4 months is agreed in a contract and in case of cost increase e.g. due to currency fluctuations or material price increases. The buyer shall be entitled to withdraw from the contract if the price increase exceeds more than 5% of the originally agreed price.
§4 Payment method and default
The delivery of ordered goods shall be performed against prepayment unless otherwise provided for by contract or by invoice.
Upon default of payment, the buyer, who is consumer, shall pay default interest in the amount of 5 percentage points over the base rate and the buyer, who is entrepreneur shall pay 9 percentage points over the base rate.
All payments must be made directly to the seller or to one of the named bank accounts. Direct debits, cheques and bills of exchange are only deemed to constitute payment once credited to the seller's bank account. Bills of exchange shall only be accepted as payment by special arrangement and provided that the seller does not incur any costs; they are accepted only on account of payment. Seller's sales representatives, agents or drivers shall be authorized to collect payments on the basis of express authorization only.
In the event of the buyer's default of payment in terms of one or more invoices, the seller is not obliged to deliver further goods unless prepayment and full payment of all outstanding accounts is fulfilled by the buyer. The same applies if the buyer finally refuses payment. In this event, the seller shall be entitled to refuse performance of the contract and claim compensation of all incurred costs and expenses, and compensation for impairment.
In case of payment on delivery, the buyer shall pay the payment on delivery fee.
The seller shall be entitled to withdraw from the contract if the financial position of the buyer worsens or his assets are seriously endangered, or the seller's claims are endangered, or the buyer acts in violation of the contract; for further deliveries, the buyer shall obtain assurance beforehand.
The buyer is only entitled to offset if his counterclaims have been made legally final, undisputed or acknowledged by the seller.
The place of the seller’s head office shall be place of performance. Shipment happens at the expense of the buyer from the place of performance. Shipment happens at the risk of the buyer if he is entrepreneur, also in case of freight-free delivery. The seller shall be entitled to choose the way of shipment unless the buyer made any particular instructions.
The seller is entitled to make partial deliveries if this is reasonable for the buyer. Additional costs of delivery are paid by the seller in this case.
Delivery period within Germany is about one-week, outside Germany about one to two weeks from conclusion of contract. The buyer is entitled to request delivery in reasonable time in case of exceedance of one week of the non-binding date of delivery in writing; once, the request has been received by the seller, he is in delay. In case the delivery gets impossible or exceedingly complicated by means of § 275 para. 2 of the German civil code (BGB) by force majeure, administrative order, operational disruption, strike or similar circumstances for which the seller is not responsible, the delivery period shall be extended for the time of the obstacle and its aftereffects. The buyer shall immediately be informed about the obstacle. In case these occurrences are not only temporary, the buyer shall be entitled to withdraw from the contract. Any prepayments will be reimbursed. The liability limitation of § 9 of these terms shall apply for compensation claims due to delayed delivery, partial delivery or non-delivery.
The seller shall be entitled to withdraw from the contract in case he does not receive the goods to deliver in his part despite having made a prior purchase contract. Liability of the seller for intent or negligence shall be unaffected according to § 9 of these terms. The seller shall immediately inform the buyer that the delivery good is not available on time and, in case he wants to withdraw from the contract, he shall exercise his right to withdraw immediately; the seller will reimburse respective financial compensation to the buyer immediately in case of withdraw.
At the event, the vintage of ordered goods is not available any more, the seller shall be entitled to deliver the following vintage without prior consultation with the buyer, provided this is not listed in the price lists at a higher price than the ordered vintage. In case, there is no following vintage available at the same price, the seller is not obligated to deliver and shall be entitled to withdraw from the contract. The buyer shall be informed about this immediately. At the event, the selling price has been paid already, it will be reimbursed immediately.
§7 Reservation of title
The seller reserves title of the delivered goods until fulfilment of all liabilities by the buyer.
At the event the buyer, who is entrepreneur, sells the goods, he assigns his claims from further sales against his purchasers including all subsidiary rights to the seller; therefore, no further separate declarations are necessary. The assignment shall include possible balance claims. The assignment however shall only apply amounting to the sum invoiced by the seller. The portion of the claim assigned to the seller shall be settled priority.
The buyer shall be entitled to collect any claims, assigned to the seller according to § 7 para. 2 until further notice. The buyer is obligated to pass any payments on the assigned claims immediately to the seller up to the sum of the secure demand. In case of justified interest, particularly in case of default of payment, suspension of payment, insolvency proceedings, bill protest, or justified indications of over-indebtedness or impending insolvency, the seller is entitled to revoke the buyer ́s collection authority. Further, after prior notice and observing a reasonable period of time, the seller shall be entitled to disclose the assignment for security, utilize the assigned claims and demand the disclosure of assignment for security to the purchasers by the buyer.
While the reservation of title exists, the buyer, who is entrepreneur, may not pledge the retained goods or use them as security. In case of attachments, seizures or other dispositions of third parties, the buyer shall promptly notify the seller. Further sales of the goods shall be limited to resellers in the ordinary course of business and only on condition that the buyer receives payment of the equivalent value of the goods. The buyer shall agree with his purchaser that ownership can only be acquired with full payment.
In case of breaches of duty of a buyer, who is entrepreneur, particularly in case of default of payment, the seller shall be entitled to demand surrender of the delivered goods without prior notice and/or – if necessary after setting a deadline – withdraw from the contract; the buyer is obligated to return the goods. The request for returning the goods is not automatically a notice of withdrawal unless expressly declared.
The buyer, who is entrepreneur, is obliged to inspect the goods immediately upon receipt in respect of defects, quality and condition and record obvious defects upon receipt of delivery. Otherwise, the goods are considered as to be approved. § 377 of the German commercial code (HGB) applies accordingly in all other respects. Liability for defect claims of a buyer, who is entrepreneur, shall be limited to one year from delivery. The statute of limitation shall not apply in case of intention or malicious non-disclosure of defects or in case the seller has guaranteed a certain condition of the goods.
In case of not effectively excluded defects, for which the seller is responsible, first the buyer shall be only entitled to claim additional delivery at the seller ́s expense. If the additional delivery fails, the buyer is entitled to claim reduction of the sales price or withdraw from the contract.
The buyer shall not have a right to retain unless this is in an appropriate balance to the determined defects and presumed costs of supplementary performance.
Bottles with a so called “cork taint“ shall only be replaced or reimbursed by the seller if the buyer returns the bottle with 2/3 of the contents and the cork.
In case of intent or gross negligence of the seller or one of his representatives or agents, as well as in cases of culpably caused injuries of a person ́s life, body or health, the seller shall be liable according to the German legal provisions. Beyond that, the seller shall only be liable pursuant to Product Liability Law, or because of culpable infringement of essential contractual obligations, or in case of malicious non-disclosure of a defect or having guaranteed a certain condition of the goods. Damage claim for culpable infringement of essential contractual obligations shall however be limited to foreseeable damages typical for the contract, unless one of the other cases of sentences 1 or 2 is relevant.
The regulations of this § 9 shall be applicable for all kinds of damage claims (particularly for compensation of damages in addition to or in lieu of performance), for whatever legal reason, particularly for defects, breach of duty under the contract or under the unlawful act. They will also apply to a claim to the reimbursement of futile expenses.
The foregoing provisions do not involve a change in the burden of proof to the buyer ́s disadvantage.
§10 Consumer ́s right of cancellation
The buyer, who is consumer and has entered into a distance contract or a contract outside business premises, shall be entitled to cancel the contract without declaration of reasons within a period of 14 days. The period of time begins with the date, the buyer or a third person named by the buyer, but not a carrier, has taken possession of the goods. If the buyer wants to exercise his right of cancellation, he must declare his cancellation to the seller in writing (wine in motion GmbH, Kellerweg 4, D- 84494 Neumarkt-St Veit, E-Mail: email@example.com, Telefon: +49 (0) 8639 420 98 66, Fax: +49 (0) 8639 420 98 68). To comply with the time limit, it is considered sufficient for the buyer to send the cancellation before expiry of time.
In case of cancellation by the buyer, the seller shall be obliged to reimburse all payments received including costs of delivery promptly, but at the last within 14 days from receipt of cancellation notice. This shall not apply for additional costs, arising from the buyer having chosen another way of delivery then the inexpensive standard delivery. The seller shall use the same way of payment, the buyer had used for the original transaction unless the parties explicitly agreed something else. In no case, the seller shall claim any fees for reimbursement. The seller shall be entitled to retain reimbursement until he received the goods, and the buyer provided evidence that he resent the goods respectively, depending on what is the earlier time. The buyer shall return the goods to the seller promptly but at the last within 14 days from declaration of cancellation. To comply with the time limit, it is considered sufficient for the buyer to send the goods before expiry of time. The buyer shall compensate a possible loss in value of the goods to the seller, if this loss of value is caused by an unnecessary or improper handling whilst inspecting the function and quality of the goods.
§11 Place of performance and place of jurisdiction
The place of the seller’s head office shall be place of performance. Sole place of jurisdiction for any disputes arising from contractual relationships shall be the seller`s head office, if the buyer is a businessman, a legal entity under public law or special fund under public law. If the buyer is consumer without a general place of jurisdiction in the Federal Republic of Germany, the seller ́s head office shall be non-exclusive place of jurisdiction. If the buyer, who is consumer, transfers his place of residence or habitual residence to a place outside Germany, or in case his place of residence or habitual residence is unknown at the time, legal action is brought, the place of jurisdiction for lawsuits shall be the place of the seller ́s head office. Exclusive places of jurisdiction, e.g. for legal default action shall remain unaffected.