General Terms and Conditions of Sale and Delivery of Reepbana GmbH
1. Scope of Application
1.1. All deliveries, including, but not limited to the delivery of beer, beer-based mixed drinks, and non-alcoholic beverages (the “Goods”), services and offers (“Deliveries”) by Reepbana GmbH (“Supplier”) shall be made exclusively on the basis of the present General Terms and Conditions of Sale and Delivery (“T&C”). These T&C shall constitute part of all contracts, which the Supplier is concluding with its contracting partners (“Customer“) regarding its offered Deliveries. They shall also apply to any future Deliveries to the Customer.
1.2. Terms and conditions of the Customer or of third parties shall not apply. This shall apply in particular if the Supplier does not object to their application in the individual case or if the Supplier makes reference to a letter, which contains or refers to the terms and conditions of the Customer or a third party.
2. Offers and Conclusion of Contract
2.1. All of the Supplier’s offers are made subject to change and non-binding, unless they have been explicitly identified as binding or if they include a specific acceptance period.
2.2. The Customer’s order shall constitute an offer to conclude a contract. It may be accepted by the Supplier within [fourteen days] from receipt in form of an order confirmation (“Acceptance“).
2.3. Information provided by the Supplier regarding the subject matter of the contract shall not constitute guaranteed features. Customary deviations shall be permitted.
3. Prices and Payment
3.1. The list prices valid on the day of Acceptance shall be relevant, if the Parties have not expressly agreed upon otherwise. All prices are net prices and are stated in EURO ex place of performance (cf. Sec. 7.1), plus applicable statutory sales tax, beer tax, costs for packaging and loading (on pallets or hand-loading), freight, insurance, and postage, and, e.g. in case of export Deliveries, plus applicable duties, charges, and other taxes public levies for import, export and transit of the Goods.
3.2. Price changes shall take effect upon announcement to the Customer.
3.3. Prices according to the price list shall refer to acceptance by pallet and delivery by forklift or by hand-loading, without any manual labor and waiting periods. Additional and special Deliveries (including, but not limited to allowances for difficult conditions) as well as additional materials necessary for a secure loading (including but not limited to tarps, airbags, telescopic bars, empty pallets) shall [SM1]
3.4. As a matter of principle, any payments shall be used towards the oldest debt, unless the Customer has given specific written redemption orders to the contrary.
3.5. The payment term is [SM2] , unless otherwise stated by the Supplier.
3.6. Usually, payment shall be made by remittance, unless a different type of payment has been stipulated (e.g. cheque, draft, cash payment, irrevocable confirmed letter of credit in English language).
3.7. Offset against the Customer’s counter-claims or withholding payments due to such claims may be made only to the extent that such counter-claims are undisputed or have been established as final and absolute. The Customer shall be entitled to assert rights of retention only due to counter-claims under the same contractual relationship.
3.8. If the Customer is in default, any outstanding payments shall bear interest at the respective applicable statutory default rate, starting from the due date. The assertion of additional default damages shall remain reserved. The Supplier’s claim against merchants to the commercial maturity interest (Sec. 353 HGB [German Commercial Code]) shall not be affected.
3.9. The Supplier shall be entitled to perform outstanding Deliveries or performances only against advance payment or security if after conclusion of the contract it obtains knowledge of facts that might significantly affect the Customer’s creditworthiness and that jeopardize payment of the Supplier’s open receivables by the Customer under the respective contractual relationship – including under other individual orders subject to the same framework agreement.
3.10. The Customer shall verify accuracy and completeness of balance confirmations and other settlements by the Supplier and shall raise objections within two weeks from receipt of such balance confirmation or settlement with the Supplier. If the Supplier previously had notified the Customer in the balance confirmation or settlement about the option to object, it shall be deemed approved.
4.1. The Delivery periods and deadlines specified by the Supplier shall be non-binding, unless a period or deadline has been stipulated as binding. Periods and deadlines shall refer to the time of transfer of the Goods – commencement of loading shall be decisive – to the freight forwarder, carrier, or to any other third party instructed to transport the Goods at the place of performance (cf. Sec. 7.1) (“Transfer“).
4.2. Delivery shall be subject to the timely and due performance of the Customer’s obligations.
4.3. The Supplier shall be entitled in the event of delays in Delivery or other performances due to force majeure or due to other events, which at the time of conclusion of the contract were not foreseeable (e.g. disruptions of operations of any kind, difficulties in procurement of material or energy, transport delays, strikes, lawful lock-outs, lack of labor, energy, or raw materials, difficulties in procurement of required regulatory permits, regulatory actions or lack of, incorrect, or delayed delivery by suppliers), which the Supplier is not responsible for, to postpone Delivery for the term of such impediment, plus a reasonable start-up time. The Supplier shall notify the Customer without delay about the relevant facts, unless they are generally known. If the delay in Delivery or other performances continues for more than one month, the Parties may revoke the contract. Such revocation of contract shall affect only the respective Delivery; the existence of continuing obligations shall not be affected.
4.4. The Supplier shall be entitled to make partial Deliveries only if (cumulative) (i) such partial Delivery is usable by the Customer as part of the contractual purpose, (ii) Delivery of the remaining ordered Goods has been ensured, and (iii) the Customer will, because of such partial Delivery, not incur considerable additional expenses or additional costs, unless the Supplier agrees to cover such costs.
4.5. If the Supplier is in delay with a Delivery or if any Delivery becomes impossible for any reason whatsoever, the Supplier’s liability shall be limited in accordance with Sec. 10 of the present Terms and Conditions of Sale and Delivery.
5. Retention of Title
5.1. The Goods delivered by the Supplier to the Customer shall remain the property of the Supplier until all present and future receivables of the Supplier resulting from the ongoing business relationship have been paid in full.
5.2. The Customer may resell the Goods that are subject to such retention of title as part of its normal business transactions. Pledges or transfers by way of security by the Customer shall not be permitted.
5.3. If third parties access Goods delivered subject to retention of title, in particular by way of pledge, the Customer shall notify them without delay about the Supplier’s title and shall inform the Supplier of the above so as to enable it to enforce its property rights. If the third party is unable to compensate the Supplier for the judicial and extra-judicial costs incurred in this connection, the Customer shall be liable vis-à-vis the Supplier for the above.
5.4. In case of resale, the Customer herewith assigns to the Supplier by way of security any and all claims under such resale against the buyer. The Supplier accepts such assignment. The same shall apply to other claims replacing the reserved goods or claims arising with regard to the reserved goods, such as e.g. insurance claims or claims under tort in case of loss or destruction. The Customer shall remain entitled to collect the claim even after the assignment. The Supplier may revoke the collection authorization at any time, including if the Customer fails to meet its payment obligations, suspends payments or if insolvency proceedings are filed or instituted against the Customer’s assets or are dismissed for a lack of assets. The same shall apply in case of similar proceedings under laws other than those of the Federal Republic of Germany.
5.5. If the Customer’s claims under the resale of reserved goods are included in an open account, the Customer shall herewith assign its payment claim under the respective or acknowledged balance, i.e. in the amount of claims due to the resale of reserved goods. If the reserved goods are sold together with other products for a total price, then the above assignment shall apply only in the amount of the invoice value of the reserved goods.
5.6. If the value of all security rights due to the Supplier under these provisions exceeds the amount of all secured claims against the Customer by more than 30%, the Supplier shall upon the Customer’s request be required in this aspect at its own option to release security to that extent.
6.1. Empties intended for reuse and means of transport (including, but not limited to pallets, containers with fixed wheels, boxes, multi-trip bottles, carbonic acid containers, kegs, premix or postmix containers) (“Empties”) shall remain the unalienable property of the Supplier and shall be left to the Customer only temporarily for the intended use.
6.2. To secure title and claims to return of the Empties, the Supplier shall charge a token payment according to the respective applicable price list plus sales tax, which shall be due and payable together with the purchase price, plus sales tax. The token payment shall merely constitute security and shall in no case be used as a basis for deductions and compensation of any kind.
6.3. The Supplier shall maintain a separate account for the token payment paid by the Customer. The Supplier shall issue credit for returned Empties. Sec. 3.10 (Acknowledgment of Balance Confirmations) shall apply accordingly.
6.4. The Customer shall be obligated to return the Empties without delay in proper condition to the Supplier.
The Supplier shall only be subject to the obligation to take back the above-specified Empties in the same way, in which it previously had been delivered by the Supplier. The Supplier may reject unreasonably high additional returns. The Supplier shall not be required to take back transport containers (full cardboard boxes, trays) or other one-way packaging material. If pallets (Euro-/Epal-/Düsseldorfer pallets) are used for multi-trip transports, such pallets shall in case of Euro or Epal pallets be replaced without delay upon delivery by the Customer and in case of Düsseldorfer pallets shall be properly stored and returned by the truck load (900 – 1000 pallets) to the Supplier.
6.5. The Customer shall replace any Empties, which have not been returned or which have been damaged at their replacement value, minus a 30% discount (deduction new for old), taking into account any paid token payment. The Customer may provide evidence of lower damage.
6.6. If and to the extent that single-use packaging is delivered, to the extent applicable, it shall be subject to token payment in accordance with the packaging regulations.
7. Place of Performance, Passage of Risk, Transport
7.1. Place of performance of all obligations of Customers and Supplier in connection with the present contractual relationship, including, but not limited to the Customer’s payment obligation, shall be the Supplier’s corporate seat.
7.2. The risk of deterioration or loss of the Goods shall pass to the Customer upon transfer in accordance with Sec. 4.1. The same shall apply to partial Deliveries or performances other than beer deliveries. If the transfer is delayed due to facts caused by the Customer, the risks shall pass to the Customer on the day on which the Supplier is ready for shipment and has notified the Customer accordingly.
7.3. Storage costs after the passage of risk shall be borne by the Customer. In case of storage by the Supplier, storage costs shall be 0.25% of the invoice amount of the stored delivery items per complete week. The right to assert and prove additional or lower storage costs shall be reserved.
7.4. Unless instructed otherwise by the Customer, the Supplier shall – taking into account the due diligence of a prudent businessman – determine on behalf of the Customer means of transport, route of transport, and transport insurance. The Supplier shall not be obligated to select the fastest or cheapest transport.
8. Customer’s Obligations
8.1. The Customer shall be obligated to store and transport the Goods in adequate conditions (in particular protected against frost, cool, and protected against sunlight and light) and shall ensure quick handling, taking into account the expiry date. The ideal storage temperature for the beer delivered by the Supplier is approx. [SM3] º Celsius (46.4º Fahrenheit).
9.1. The delivered Goods shall be carefully inspected without delay upon handover to the place of handover specified by the Customer or to a third party specified by the Customer (“Handover”). The Customer shall notify the Supplier of defects as follows:
9.1.1 Within seven business days from Handover in case of apparent defects or defects, which were detectable during immediate and careful inspection;
9.1.2 In case of defects other than those specified in Sec. 9.1.1. within seven business days from detection of the defect or from the point in time, when the defect was detectable by the Customer or a designated third party in case of normal use without further inspection, but in any event prior to the expiry date of the relevant Goods, unless the Customer is able to prove that the defect already existed previously.
9.2. If defects are not reported in due time, claims (of any type whatsoever) on the part of the Customer due to such defects shall be excluded.
9.3. In case of defects of the delivered Goods, the Supplier shall at its own discretion within a reasonable period of time initially have the right and the duty to improve subsequently or to provide replacement. The Customer may cancel the contract or reduce the purchase price if subsequent improvement or replacement delivery has failed twice in a row.
9.4. In case of failure to comply with the storage temperature, complaints due to possible defects of the Goods shall be excluded.
10.1. Any liability on the part of the Supplier under or in connection with this contract of any type whatsoever shall be subject to the provisions of this Sec. 10.
10.2. The Supplier shall be liable for intention and gross negligence, in case of culpable breach of material contractual obligations, and in case of injuries to life, body, or health as well as under the Product Liability Act (Produkthaftungsgesetz – ProdHaftG). A material contractual obligation is an obligation, the fulfillment of which only enables the proper execution of the contract at all and with which the Customer relies and may as a rule rely on its compliance.
10.3. In the absence of any intentional breach of contract, liability for damages shall be limited to the foreseeable and typical damage.
10.4. Otherwise, any liability on the part of the Supplier shall be excluded.
10.5. The above exclusions and limitations of liability shall equally apply in favor of the executive bodies, legal representatives, employees, and other assistants of the Supplier.
11.1. If the Supplier cancels the Contract because the Customer has acted in breach of Contract – including, but not limited to delay in payment – it shall be entitled to demand surrender of the reserved goods. The Customer herewith permits the Supplier for this purpose to access the Customer’s premises for such purpose and to procure removal of the reserved goods by the Supplier or by authorized third parties.
12.1. If the Supplier is producing and delivering a trade brand on behalf of a Customer, the Customer shall guarantee that he holds any and all licenses, trademarks, and other intellectual property rights or other rights under another legal system applicable for the territory where the trade brand is produced and/or sold, which are required for production (including by the Supplier) or sale of such trade brand.
12.2. The Customer shall indemnify the Supplier upon first request in connection with any violation of the rights set forth in Sec. 12.1.
12.3. The Customer shall in particular in case of purchase of trade brands be obligated to take all ordered Goods.
12.4. If the Supplier is producing Goods as a trade brand for the Customer and if the Customer takes only a smaller quantity than the stipulated quantity, the Customer shall be obligated to take the empty cans/bottles kept by the Supplier for the trade brand or cover the costs for their production and proper disposal.
13. Formal Requirement, Different Agreement, Notifications
13.1. Agreements and notifications in connection with this contractual relationship may be given by fax, e-mail, or in writing.
13.2. Agreements differing from the present T&C or other agreements by the Parties shall require one of the forms set forth in Sec. 13.1 to be valid.
14. Final Provisions
14.1. If the Customer is a merchant in the sense of the German Commercial Code (Handelsgesetzbuch – HGB), a separate legal entity under public law or a separate fund under public law, the sole legal - also international - venue for all disputes arising directly or indirectly from the contractual relationship between the Parties shall be the Supplier’s seat of business in Hamburg (Germany). The Supplier shall also be entitled to file a legal action at the Customer’s seat of business. Mandatory statutory provisions regarding exclusive venues shall not be affected by this provision.
14.2. Any and all contractual relationships between the Supplier and the Customer, including the present Terms and Conditions of Sale and Delivery, shall be governed by the laws of the Federal Republic of Germany, under exclusion of the UN Convention on International Sale of Goods.
Status August 2017