General Business Terms and Conditions for Winegrowers’ Cooperatives
1. Sphere of Validity and Amendment of These Business Terms and Conditions
1.1 For all deliveries made by the cooperative to the buyer (Entrepreneur and Consumer), including such deliveries from future business transactions, if no deviating special terms and conditions have been agreed, e.g. subject to the participation of a wine commission agent, the following terms and conditions shall be prevailing as well as the delivery and payment terms and conditions.
The invalidity of individual terms and conditions shall not affect the validity of the remaining terms and conditions. The same shall be valid if individual terms and conditions do not become a contractual component.
1.2 Any changes to these Business Terms and Conditions shall be disclosed to the contractual partner in text form. They shall be considered to have been approved if the contractual partner has not objected to them in text form. When announcing such a change, the cooperative shall make particular reference to this consequence. The contractual partner must send the objection to the cooperative within six weeks after becoming aware of the changes.
2. Conclusion of the Contractual Agreement
2.1 The offer shall be considered to be non-binding. It shall be intended for the consumer groups stipulated by the cooperative. Upon the publishing of a new price list, any previous price lists shall lose their validity.
2.2 If contractual agreements are concluded with entrepreneurs subject to a confirmation in writing or by telex, the contents of the confirmation letter from the cooperative shall be prevailing insofar as the recipient does not promptly lodge an objection.
3.1 For the delivery, the delivery and payment terms and conditions of the cooperative shall be valid.
3.2 The cooperative shall be entitled to render the contractual service in partial deliveries if this is reasonable for the buyer. If a call-off delivery has been agreed, then the buyer must request the call-off delivery within an appropriate timeframe.
3.3 The delivery occurs within five working days, insofar as a specific delivery date or a delivery timeframe has not been agreed.
3.4 If the delivery is made impossible or excessively difficult in accordance with § 275 Para. 2 of the German Civil Code owing to force majeure, governmental measures, factory shutdowns, strikes, extreme weather conditions (e.g. heat, hail, frost or the risk of frost) or similar sets of circumstances–including affecting the cooperative’s suppliers, then the cooperative shall be released from its delivery obligation for the duration of the hindrance and its consequences. This shall also entitle the cooperative to withdraw from the contractual agreement if and insofar as it is no longer reasonable for it to adhere to the contractual agreement. In the event that the cooperative’s suppliers fail to make delivery or deliver only insufficient quantities to the cooperative, the cooperative shall be released, in whole or in part, from its delivery obligations which are owed to entrepreneurs. This shall only then be valid if the required precautionary measures have been undertaken regarding the procurement of its required auxiliary or operational resources and it has carefully selected its own suppliers. In this case, upon request, it shall be obliged to assign its claims against the supplier to the entrepreneur. Furthermore, in this case, the entrepreneur shall remain obliged to render the counter-performance in accordance with § 326 Para. 3 of the German Civil Code. The cooperative shall promptly notify the entrepreneur of the occurrence of the aforementioned events and the non-availability of the goods and, in the event that the contractual agreement is rescinded, shall promptly reimburse the counter-performances provided by the entrepreneur.
3.5 Transport cost increases and rate changes may be added to the purchase price by the cooperative if the delivery is later than four months after the conclusion of the contractual agreement.
3.6 The shipping–including within the same shipping point–shall be made at the buyer’s expense unless the goods are being transported via the cooperative’s vehicles. In the event that shipping is being made to an entrepreneur, the entrepreneur shall assume the risk; this shall also be valid for freight-free delivery. The cooperative shall select the shipping method insofar as the buyer has issued no special instructions. The cooperative shall conclude transport insurance upon the buyer’s request in his requested scope at his expense.
3.7 In the event that a purchase is made after receiving a sample, the samples provided by the cooperative shall be considered to be commercial samples. Delivery shall be made as long as the stockpiles last.
3.8 All deliveries shall be made to the address designated by the buyer. If the address-related information is lacking , then the purchasing agreement shall be considered to have been fulfilled by making delivery to the buyer’s central office.
3.9 In the event of the delivery of grapes, mash, must or bulk wine, the following shall be valid:
The buyer shall be obliged to accept delivery of bulk wine by no later than six weeks after the conclusion of the purchasing agreement and to announce the delivery acceptance date at least two days in advance. The buyer shall be obliged to accept delivery of grapes, mash or must immediately after the conclusion of the purchasing agreement. Upon the conclusion of the purchasing agreement, the warehousing shall be made at the buyer’s risk. The sale of bulk wine, grapes, mash or must shall be made “ex cellar”. The filling costs as well as the costs for the loading shall be assumed by the buyer.The quantity stated on the order confirmation for the bulk wine shall not refer to the container (half-unit, unit, cartload, tank, etc.), but rather to the number of litres upon acceptance.
In the event that bottled wine is delivered, the goods shall be packed in the manner which is customary for the industry. Returnable packaging must be emptied by the buyer and promptly returned in a flawless condition by the entrepreneur freight-free. Such packaging may not be filled with other goods or otherwise used.
5. Notification of Defects by the Entrepreneur
5.1 Notifications of defects owing to the obviously flawed or the obviously deviating quality of the goods or owing to the delivery of obviously other goods than those which are ordered may be asserted by the entrepreneur only promptly, but nonetheless by no later than within a week after receipt of the goods and/or after the defect has become obvious. The cooperative shall be liable for one year for claims for defects in its dealings with entrepreneurs except in the cases of § 309 No. 7 lit. a and b of the German Civil Code.
5.2 The entrepreneur must inspect the goods immediately upon their receipt with regards to quantity, quality, and features and shall be obliged to list any obvious defects on the delivery receipt. Otherwise, § 377 of the German Commercial Code shall be valid in the relationship to entrepreneurs.
6. Controlling of the Invoicing
Any invoices drafted by the cooperative must be promptly examined by the entrepreneur with regards to their correctness–particularly with regards to the indicated VAT rate. Any objections or the documentation of an incorrect VAT rate must be reported in text form to the cooperative within 14 days after receipt of the invoice. If the cooperative should receive no message in this regard from the entrepreneur within the 14-day timeframe, the VAT rate indicated by the cooperative shall be prevailing. In the event of the violation of the notification obligation, the entrepreneur shall be obliged to pay the cooperative damage compensation in accordance with the statutory directives.
7.1 For the payment, the delivery and payment terms and conditions of the cooperative shall be valid.
7.2 In the event of the delivery of bulk wine and/or must, the purchase price must be paid upon the delivery acceptance of the wine or the must, but nonetheless by no later than six weeks after the conclusion of the purchasing agreement without any discounts, free of postal charges and other expenses insofar as no special agreements have been concluded for the purchases of must (e.g. payments to Martini).
7.3 Payment by bill of exchange shall be permitted only by express agreement and shall also only then be valid for fulfilment purposes. Discount expenses and debt collection expenses shall be assumed by the buyer; they shall be immediately payable.
7.4 In the event that payment is made by check, the receipt of the check by the cooperative shall not be considered to be fulfilment, but rather only then its unconditional crediting as fulfilment.
7.5 All reciprocal payment claims arising from the business relationship shall be placed into a current account for which the provisions of §§ 355 ff. of the German Commercial Code shall be valid. The balance notifications made by the cooperative shall be considered to be closing statements. The balance shall be considered to have been acknowledged if the buyer does not lodge objections within six weeks after receipt of the account statement. The cooperative shall make special reference to this policy when sending the accounting statement. The statutory claims shall remain unaffected.
7.6 The buyer may offset only with such counterclaims which are not disputed by the cooperative or which have been legally upheld. The buyer may not exercise a right of retention which is not based upon the same contractual relationship.
7.7 In the event of a payment in the SEPA-based or business-to-business direct debiting procedure, the cooperative shall notify the buyer of the one-time SEPA direct debiting procedure and of each SEPA continuous direct debiting procedure with varying amounts by no later than one working day before the direct debiting procedure for this respective amount. For the initial SEPA continuous direct debiting procedure with amounts which do not vary, the cooperative shall notify the buyer, by no later than one working day before the initial direct debiting procedure, of the initial direct debiting procedure and the follow-up direct debiting procedures.
8. Performance Disruptions
8.1 The purchase price shall become immediately payable without any warning letter being required if the buyer definitively refuses to pay the purchase price. The same legal consequence shall become effective if the buyer enters into default with the agreed instalment payments with an amount exceeding one instalment payment and if the amount in arrears is at least 10 % of the overall purchase price. In the event of the definitive refusal to pay the purchase price, the cooperative may also, without being required to provide advance notice, reject the fulfilment of the purchasing agreement and demand the reimbursement of all incurred costs and outlays as well as compensation for a reduction in value.
8.2 If, after the receipt of the warning letter, the purchase price that is due is not immediately paid, then the consumer must pay payment default interest of 5 % points; the entrepreneur must pay payment default interest of 9 % points above the respectively valid base lending rate. The cooperative may demand advance payments, partial advance payments or cash upon delivery.
8.3 In the event of delivery acceptance default upon the part of the buyer, the cooperative may, at the expense and risk of the buyer, warehouse the goods on its own premises or on the premises of a third party or exploit them in any other manner which appears to be suitable to it at the buyer’s expense without being required to make advance notification of this.
8.4 The cooperative may demand the immediate payment of all payment claims or make the rendering of its services dependent upon the provision of security if an essential deterioration in the financial or income situation of the buyer occurs or his financial situation is at substantial risk.
9. Reservation of Ownership
9.1 The delivered goods shall remain the cooperative’s property until payment in full of the purchase price has been made. In its dealings with entrepreneurs, this shall also be valid for all claims which the cooperative has acquired or will acquire in the future against the buyer in the business relationship with the buyer. In the event of a contractual violation upon the part of the buyer–particularly if the buyer is in payment default, the cooperative shall be entitled to withdraw from the contractual agreement after having provided appropriate advance notice.
9.2 If the reserved goods are inseparably blended or mixed with other wines which are the property of the buyer or a third party, or packaged with other goods to form a new sales unit, then the cooperative shall acquire co-ownership to the uniform goods based upon the value of its reserved goods to the value of the goods mixed with these reserved goods at the point in time of the blending, mixing or packaging.
9.3 The processing and handling of the reserved goods by the buyer shall always be undertaken for the cooperative. If the reserved goods are processed with other objects not belonging to the cooperative, then the cooperative shall acquire co-ownership to the new goods based upon the value of the reserved goods to the other processed objects at the time of their processing and handling.
9.4 Upon the cooperative’s request, the buyer must, at his own expense, insure the goods belonging to the cooperative in an appropriate scope against the customary risks and assign his insurance claims to the cooperative. The cooperative shall also be entitled to pay the insurance premiums and then pass on these costs to the buyer.
9.5 The buyer shall be entitled to resell the goods–including those goods produced as the result of the blending, mixing, processing or handling–only during the course of his ordinary business operations. He shall not be entitled to make other disposals of these goods–particularly not to pledge them or assign them by way of security.
9.6 The entrepreneur shall already now assign all claims arising from the resale of the reserved goods to the cooperative. The same shall be valid for any other claims which supplant the claims for the reserved goods or are otherwise created regarding the reserved goods. In the case of processing and handling, this shall be valid subject to the proviso that a top-priority partial amount is assigned which corresponds to the co-ownership percentage of the cooperative in the sold goods. If the entrepreneur sells goods which are in the ownership or the co-ownership of the cooperative together with other goods not belonging to the cooperative for a total price, then the entrepreneur shall already now assign a top-priority partial amount of this total claim to the cooperative which corresponds to the percentage of the reserved goods.
9.7 The entrepreneur shall be authorised to collect the assigned payment claims arising from the resale. The cooperative may at any time revoke this collection authorization if the entrepreneur fails to fulfil his payment obligations, enters into payment default, files for bankruptcy, or discontinues his payments or if third parties commence mandatory debt enforcement measures. Upon request, he must disclose to the cooperative the names of the parties owing the assigned payment claims, notify these debtors of such an assignment or surrender the assignment notices to the cooperative. As long as the entrepreneur fulfils his payment obligations, the cooperative shall not disclose the assignment. If the realisable value of the security provided to the cooperative exceeds the payment claims overall by more than 10 %, then the cooperative shall, upon the entrepreneur’s request, be obliged to release the security of its choice in this regard.
9.8 If the payment of the purchase price is made by check/bill of exchange, then the reservation of ownership shall only then lapse upon the redemption of the bill of exchange by the buyer.
10.1 Damage compensation claims of the buyer–regardless of the legal reason–particularly owing to the violation of contractual obligations and as the result of tortious acts shall be excluded.
10.2 This shall not be valid insofar as statutory law prescribes mandatory liability–particularly in cases of
- malice, intentional wrongdoing and gross negligence,
- the loss of life, physical injury or damage to health,
- the provision of a warranty, e.g. for the existence of a quality feature,
- the violation of essential contractual obligations or
- liability in accordance with the German Product Liability Act.
10.3 Damage compensation claims owing to the culpable violation of essential contractual obligations shall be limited to contractually-typical, foreseeable damages.
10.4 Damage compensation claims owing to the culpable violation of essential contractual obligations shall be limited to contractually-typical, foreseeable damages.
10.5 Any change in the burden of proof to the detriment of the contractual partner shall not be associated with the aforementioned provisions.
11. Place of Performance, Applicable Law
11.1 The business premises of the cooperative shall be the place of performance for both parties if the buyer is an entrepreneur or a juridical person under public law or a special foundation under public law or his place of residence is outside the Federal Republic of Germany.
11.2 The law that is valid for the place of performance shall be prevailing for all legal relationships between the buyer who is an entrepreneur and the cooperative and indeed also then if the legal dispute occurs abroad.
12. Legal Venue
If the customer is an entrepreneur or a juridical person under public law or a special foundation under public law, then the cooperative may file a lawsuit in the legal venue of the place of performance and only be sued in this legal venue.
If the cooperative commissions its trust agency or debt collection agency to assert its claims, then it may also file a lawsuit in its general legal venue subject to the aforementioned requirements. The cooperative or the debt collection agency may, as it so chooses, also file lawsuits in the municipal court even if the regional court would be competent based upon the amount at dispute.
13. Return Shipment Costs in Distance Sales Transactions with Consumers
In the event that he exercises his cancellation right, the consumer must assume the standard costs for the return shipment of the goods.
14. Obligation to Pay Compensation in Distance Sales Transactions with Consumers
In the event that he exercises his cancellation right, the consumer must pay compensation insofar as the loss in value is attributable to the handling of the goods which was not required for the examination of the quality, features and the functionality of the goods.
17. Consumer Dispute Resolution
The cooperative shall not participate in consumer dispute resolution proceedings and shall also not be obliged to do so.