Any departure from these terms must be confirmend in writing. Terms and conditions of buying on the part of the buyer or orderer will not – in as far as these deviate from the terms contained herein – be recognized, even without express mention of this fact. Placement of orders will be regarded as recognition of terms contained and acceptance of deliveries as consummation thereof.
1. Definitions:
In these „Terms and Conditions of Sale” the following expressions shall be defined as appears below. “The Sellers” are the issuing company on reverse side, their assigns or successors in title.
“The Buyers” are the persons, firms or companies named in the invoice.
“The Goods” shall refer, unless otherwise defined herein to those items ordered by the Buyers which appear on the Sellers invoice. “The Terms” are these “TERMS AND CONDITIONS OF SALE”. Date of delivery is the date of receipt of the Goods by the Buyers.
“The invoice” shall mean the Sellers invoice.
2. Basic of Contracting:
The Sellers only contract on the basis of these Terms and Conditions. Upon placing an order with the Sellers the Buyers shall be deemed to purchase the Goods upon these Terms. These Terms may not be waived or varied save when such wavier or variation is in writing and signed by a director or senior employee of the Sellers. Any failure to enforce the Terms on previous occasions by the Sellers in respect of sales to the Buyers or other Buyers shall not be taken as a waiver or variation of these Terms.
3. Price / Terms of Payment
In as far as not otherwise agreed, the following terms of payment will apply. The price payable by the Buyers to the Sellers shall be that shown on the invoice save that the Seller shall have the right to alter the price without notice and in the event of such an alternation the price payable shall be the ruling at the date of delivery. The price which is ex-cellar, ex Bond or free House is payable in Euro net 30 days after the date of the invoice. In the event of a delay in making payment the Buyer shall be liable to pay interest thereon at the rate of 2 % above the current base lending rate of Euro.
In the event of unfavourable information or nonfuliment of commitments entered into, we have the right of cancel delivery agreements in part or in whole, whithout previous notification or grant of a period of respite and to collection of amounts still not due.
For the event that a buyer’s bill of exchange or cheque is protested, or if a Buyer’s Bill of Exchange is not discounted or not considered discountable at the state Clearing Bank, all outstanding amounts become due for immediate payment. In the case of large orders or new
customers, we can, at our discretion request payment in advance or deposit in lieu of payment.
Offer and confirmation of orders in the case of fine wines are subject to grant of official test number. Offers are without obligation.
4. Sales by Sample
When the buyer purchases the goods by sample the Sellers do not represent or warrant that the sample will correspond with the goods delivered although without prejudice the the foregoing every care is taken to ensure that the samples will correspond with the bulk.
Samples and trials only reflect the average standards.
5. Rights of Substitution
Orders for Goods are placed by the Buyers on the basis that in the event of the unavailability of those Goods the Sellers shall have the right to substitute without notice Goods which correspond closest to the Goods ordered as to class, type, quality and price.
6. Time / Delivery
Orders for Goods are placed by the Buyers on the basis the what is ordered may not be in stock with the Sellers and may not be immediately available. In the event that the Sellers are not able to exercise their right of substitution per clause 5 thereof the Sellers shall have the right to inform the Buyers within three days of the receipt of the Buyers’ order of the immediate unavailability of the Goods ordered and the consequent delay. In those circumstances the Buyers shall have the right to cancel their order. In any event, time shall not be of the essence of the contract and any indications given by the Sellers as to the expected date of delivery either only orally or in writing shall be the best estimate that can be given in the circumstances and shall not form a term of the contract unless special provisions have been made between the parties herein in writing when the order is placed by the Buyer.
Deliveries of wines are subject to grant of the official Government A.P. test number. Orders on call on which delivery is not taken within 2 months after confirmation and/or conclusion of contract are payable immediately without deductions in the event of delivery not being taken within the agreed period or payment being in default, we have the right, without notice and formal notice of contract, to withdraw from the said contract and/or charge interest or warehousing fees.
In the event of delivery not being taken within the agreed period or payment being in default, we have the right, without notice and formal notice of contract, to withdraw from the said contract and/or charge interest or warehousing fees.
If after conclusion of contract there arises taxation, customs, dues or taxation increases of difficulties in buying in the vineyard areas, substantial price increases, in import or production etc., we have the right to withdraw from the contract in respect of part or all quantities ordered or to calculate a corresponding increase in as far as invoicing hat not taken place on our part.
The above applies accordingly in the event of complete of partial currenty restrictions, currency exchange closure and changes in monetary and currency rates. Should the customer request storage 2 % of the sales price will be charged for such storage and interest for each month or part of a month.
The offer is irrevocable on the part of the buyer. We reserve the right to intermediate sales. In the event of heat or cold, which could be detrimental of the wine, there is no obligation for shipment even if firm delivery dates have been agreed.
7. Risk
The risk for any loss or damage to the Goods shall pass to the Buyers once the Goods are appropriated to the contract by the Sellers and in those circumstances the Buyers should make their own separate arrangements in insuring the Goods upon their appropriation to the contract as aforesaid. Any breakages incurrend during transport must be confirmed by the railway or forwarding agent immediately upon receipt of the consignment in order to facilitate claims being lodged with the transport insurer/forwarding agent.
8. Retention of Title
The legal title in the Goods shall pass to the Buyers only when those Goods haven been paid for in full to the Sellers.
In the event that the Buyers shall obtain possession of the Goods prior to making payment for them the Buyer will, if requested in writing by the Seller, keep Goods stored separately in a readily indentifiable condition and he shall insure them to their market value against any loss or damage. In the absence of such a request the Buyer shall be entitled to use the Goods in the ordinary course of his business.
Should the Buyer subject the Goods to any manufacturing process or mix the Goods in any way when the product of such manufacturing process or admixture will pass into the ownership of the Seller as security for the payment of the price.
Further, until the Buyer has paid the Seller in full he shall hold the Goods, or in the event of the Goods having been subjected to an manufacturing process (as envisaged above), the processed Goods; or in the event of the mixint of the Goods (as envisaged above). The resulting admixture, on trust for the Seller.
In the event of the Seller selling the Goods, or the processed Goods or admixture (as defined above) he shall hold the proceeds of sale on trust for the Seller until he discharges all this debts.
9. Complaints
No complants as to the quality or fitnett for purpose of the Goods shall be entertained by the Seller unless such complaintis notified to the Seller by the Buyer in wrting within seven days of the receipt of the Goods by the Buyer. In this case the impartial German government agency responsible for testing and certifiying wine quality and granting approval numbers shall be asked to analyse and judge the condition of the product in question. In any event the Buyer shall not be entitled to complainto the Seller about “corked” bottles. Crystalilzation does not constitute grounds for complaint.
10. Force Majeure
The Seller shall not be liable for any loss, damage or delay arising as a result of political conditions, difficulties on the part of our suppliers, strikes, riot, civil commotion, war, act of God or any other matters howsoever arising beyond the Sellers’ control.
11. Law of the Contract
The paries‘ rights and liabilities under the Terms of this contract shall be determined according to German law.
12. Place of Performance and Jurisdiction
Place of performance for delivery and payment is Bernkastel-Kues for both parties, in particular for domiciled Bills of Exchange and cheques. Place of jurisdiction is Bernkastel-Kues this applying also to claims in respect of Bills of Exchange, cheques or other documents.
Peter Mertes KG Weinkellerei
54463 Bernkastel-Kues
Postfach 13 60 - 54463 Bernkastel-Kues, Germany
Telefon (0 65 31) 55-0 - Telefax (0 65 31) 55-12
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