General Terms and conditions of sale
§ 1. APPLICATION
1.1 These terms and conditions of sale also to be seen under https://www.fritz-kola.de/agbs/ shall apply exclusively. Differing or contrary terms shall not apply except if ex-pressly agreed upon in writing by fritz-kola Gmbh (hereinafter “fritz”).
1.2 These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of diffe-ring or contrary terms.
1.3 These terms and conditions of sale shall only apply vis á vis entrepreneurs, govern-mental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).1.4 You will be notified of amendments of these terms and conditions of sale in writing, per telefax or via email. If you do not object an amendment within four weeks after receipt of notification, the amendments shall be deemed as accepted by you. You will be separately made aware of the right of objection and the legal consequences of the reticence in the case of an amendment of the GTC.
§ 2. OFFER, ACCEPTANCE
2.1 All offers of fritz-kola Gmbh are not-binding and noncommittal. Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.
2.2 We may accept the offer through written declaration (such as an order confirmation) or by delivering the goods to the purchaser.
§ 3. PRICES, PAYMENT
3.1 Except as otherwise expressly agreed upon, delivery shall be made at the respec-tive daily/list prices that are valid on the date when the contract was concluded. Prices are in EURO and ex works named place where is also the place of performan-ce for delivery and respective new delivery, as mentioned by fritz-kola Gmbh in the order confirmation exclusive of the respective statutory VAT and exclusive of costs for packaging. Moreover prices are plus customs duty in the case of exports and fees and other public costs,
3.2 fritz announces any price modifications 3 month prior before the increase. Insofar the list prices of fritz-kola Gmbh with effect of delivery time shall apply, if applicable, minus separately any granted rebates.
3.3 Unless otherwise agreed in writing, the purchase price is due immediately after invoicing and delivery or immediately after acceptance of the goods. fritz-kola grants a 2% discount if a SEPA Direct Debit Business-to-Business (SDD B2B) scheme is authorized or the payment is made upfront. To that extent, the purchaser agrees to authorize fritz-kola Gmbh to make a direct debit under the SDD B2B scheme. However, fritz-kola Gmbh may at any time make a delivery fully or partially contingent on payment on pickup or in advance, even within the scope of an ongoing business relationship or if the purchaser cannot set up a SEPA Business to Business authorization. fritz-kola Gmbh shall declare any such reservati-on when they confirm the order, if not before. In the SEPA direct debit procedure, the notice period for prenotification is shortened to one day before withdrawal. The purchaser shall ensure it has adequate funds in its account. If through no fault of fritz-kola Gmbh the amount is not debited from the account or is retransfer-red, the purchaser shall bear the costs incurred. fritz-kola Gmbh may also carry out a credit check.
3.4 fritz may refuse to execute pending deliveries or services unless a prepayment is made or a security provided, if after this agreement has been entered into fritz-kul-turgüter GmbH becomes aware of circumstances suited to materially worsen the purchaser‘s credit rating and jeopardize its payment of fritz‘s outstanding claims under this contract relationship.
§ 4. OFFSET, RETAINER
The purchaser shall be entitled to offset or claim retainer rights only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally bin-ding judgement.
§ 5. DELIVERY
5.1 Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
5.2 If the purchaser defaults on accepting fritz‘s merchandise that has been commis-sioned for the purchaser, or fails to perform a cooperating action; or if the delivery by fritz-kola Gmbh is delayed for other reasons for which the purchaser is responsible, fritz-kola Gmbh may demand compensation for the damage it suffers thereby, including additional expenses (such as storage costs). To that end, fritz-kola Gmbh will charge lump sum damages amounting to two euros per calendar day per pallet, beginning with the delivery deadline or – if there is no delivery deadline – with the notification that the goods commissioned for the customer are on pallets ready to be picked up. fritz-kola Gmbh may prove higher damage and statutory claims (including without limitation compensation for additional expenses, adequate damages, or termination); however, the lump sum must be credited to any additional monetary claims asserted by fritz. The purchaser may prove that fritz-kul-turgüter GmbH suffered no damage or significantly less damage that the amount of the preceding lump sum. Further claims remain reserved. In this case, the risk of accidental destruction or accidental deterioration of the goods shall be transferred to the purchaser when the default or other breach of cooperation obligations occurs.
5.3 fritz shall not be liable if delivery is prevented or delayed by force majeure or other events not foreseeable when this agreement was entered into (such as business dis-ruptions of any kind; epidemics and pandemics (such as COVID 19 pandemics that seriously affect fritz`s production and supply chains); difficulties in procuring materials or energy; transport delays; strikes; lawful lockouts; shortages of labor, energy, or raw materials; difficulties in procuring necessary official permits; government actions; or non delivery or late delivery by suppliers) for which fritz-kola Gmbh is not to blame. In such cases, the purchaser may not assert claims for damages against fritz. fritz-kola Gmbh may postpone the delivery by the duration of the hindrance or delay plus a reasonable startup period.
5.4 If the service is unavailable, including but not limited to cases force majeure, fritz-kul-turgüter GmbH shall inform the purchaser thereof, and of the presumable new delivery date, without undue delay. If the service will not be available before the new delivery date either, fritz-kola Gmbh may withdraw from the contract in part or in full and shall refund any consideration the purchaser has already paid. For these purposes, the service will be deemed „unavailable“ particularly (but not exclusively) if a delivery from fritz‘s supplier is late, provided fritz-kola Gmbh has entered a matching hedging transaction, neither fritz-kola Gmbh nor its suppliers are at fault, or fritz-kola Gmbh is not obligated to procurement in an individual case.
5.5 If a pickup is made ex works or at the loading ramp in accordance with the order confirmation or order release, the purchaser shall load the collected items on suitable vehicles in a manner safe for transport, even if staff or vicarious agents of fritz- kul-turgüter GmbH support them from the ramp in so doing. To that extent, the custo-mer indemnifies fritz-kola, or its vicarious agents working at the loading ramp, against all damage and third-party claims. At some loading ramps (e.g. “Winkels”) an appointment for pickup has to be made in advance.
§ 6. TRANSFER OF RISK DURING SHIPMENT
If the goods are shipped at the purchaser‘s expense to different named place then ex work fritz, the risk of delay and the risk of accidental destruction or accidental deterio-ration of the goods shall be transferred to the purchaser when the goods are delivered to the transport company, freight carrier, or other person or institution appointed to ship them.
§ 7. RETENTION OF TITLE
7.1 fritz retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, fritz-kola GmbH is entitled to take possession of the goods.
7.2 The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
7.3 As long as the purchase price has not been completely paid, the purchaser shall im-mediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
7.4 The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to fritz. Notwithstanding fritz-kola GmbH`s right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, fritz-kola Gmbh agree to not demand payment on the assigned claims to the extent the purcha-ser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
7.5 Insofar as the above securities exceed the secured claim by more than 10%, fritz-kul-turgüter GmbH is obligated, upon our election, to release such securities upon the purchaser’s request.
§ 8. QUALITY & WARRANTY
8.1 fritz delivers beverages of the highest quality that are produced in accordance with existing statutory provisions. Otherwise, the purchaser may not assert any warranty rights unless it has fulfilled its obligation under Sec. 377 of the German Commercial Code (HGB) to examine the goods and give notice of defects.
8.2 The delivered items must be carefully examined without undue delay after they are delivered to the purchaser, or to the third party specified by the purchaser; that exa-mination must include without limitation the amount of the containers (whether full or empty) and means of transport that are delivered and taken back; the types of goods; and the period remaining until the goods‘ expiration date indicated or guaranteed by fritz-kola is reached. If the goods contain visible defects or other defects that would be identifiable during a careful examination performed without undue delay, the goods shall be deemed accepted by the purchaser unless fritz-kola Gmbh receives a written notice of complaint within seven (7) business days after delivery. If the delivered items contain defects other than those, they shall be deemed accepted by the purchaser if fritz-kola Gmbh does not receive the notice of defects within 7 (seven) business days after the date on which the defect is discovered; if the defect was visible at an earlier date, assuming normal use, the time limit for giving notice of defects shall begin on that earlier date. The deadline shall be deemed met if the notice of defects is sent on time.
8.3 Warranty claims may be asserted within 12 months after risk is transferred.
8.4 If the goods are defective, the purchaser is entitled to a supplementary performance through rectification of the defect or delivery of a defect-free item. If the supplemen-tary performance fails as well, the purchaser may reduce the purchase price or with-draw from the contract.8.5 The purchaser shall check balance confirmations, balances of empties, and other statements of account to make sure they are correct and complete. Any objections to those confirmations, balances, or statements must be reported without undue delay: within one month after the statement in question is received. Otherwise, those confir-mations, balances, or statements shall be deemed approved.
§ 9. LIABILITY
9.1 fritz shall not be liable for ordinary negligence on the part of its boards and commit-tees, legal representatives, salaried staff, or other vicarious agents, unless a mate-rial obligation has been breached. „Material obligations“ include the obligations to promptly deliver and install the delivery object and ensure its freedom from defects in title, or from defects in quality that impair its functionality or usability more than slight-ly; as well as obligations to consult, protect, and observe due diligence that should make it possible for the purchaser to use the delivery object as intended, or that aim to protect the life and limb of the purchaser‘s personnel or protect its property from considerable damage.
9.2 If fritz-kola Gmbh is liable for damages in accordance with Sec. 9 (1), that liability is limited to the damage that fritz-kola Gmbh foresaw as a possible consequence of a breach of contract (or should have foreseen if acting with a standard level of business prudence) when the contract was entered into. Moreover, indirect damage and consequential damage resulting from defects in the delivery object are compensable only if they would typically be expected if the delivery object is used as intended.
9.3 The preceding exclusions and restrictions of liability apply to the same extent toward the boards and committees, legal representatives, salaried employees, and other vi-carious agents of fritz.
9.4 The restrictions of this Sec. 9 do not apply to fritz‘s liability due to intentional conduct, guaranteed characteristics, injury to life, limb or health, or in accordance with the Product Liability Act.
§ 10. EMPTIES; DEPOSIT; GOODS ON CONSIGNMENT
10.1 The empties intended for reuse (such as crates, returnable bottles, and pallets) are surrendered to the purchaser only to be used as intended, and the purchaser shall return them to fritz-kola Gmbh without undue delay. Individual empties remain the unsellable property of fritz-kola Gmbh or that party‘s manufacturing bottler. In any case, additional labels require the express consent of fritz. fritz-kola Gmbh may charge a standard deposit. The purchaser shall return empties and pallets of the same type and quality and in flawless condition. An appropriate deposit receipt will be issued for properly returned empties. For individual empties not returned, fritz-kola Gmbh shall charge a fee at its reasonable discretion, but at least 50% of the replacement price for new empties (a “new for old” deduction), that is set off against the deposit. The same applies if the empties balance is negative when the business relationship ends. Nevertheless, fritz-kola Gmbh may refuse to take back crates and pallets unless the bottles and crates they contained when delivered are returned at the same time („sorted reusable empties“). fritz-kola Gmbh ac-cept notwithstanding separate individual agreements ) e.g. so called “Sortiments- und Prämienvereinbarung” for distributors without prejudice a quote of non- fritz returnab-le bottles up to a maximum of 2 %.
10.2 Goods sold on commission shall be taken back only in sales units. Sales units that have been broken up shall be taken into account as empties.
§ 11. FINAL PROVISIONS
11.1 The relations between fritz-kola Gmbh and the purchaser are governed exclu-sively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) does not apply.
11.2 If the purchaser is a merchant, a legal entity under public law, or a special fund under public law, or if the purchaser has no general forum within the Federal Republic of Germany, the forum for all disputes arising from the business relationship between fritz-kola Gmbh and the purchaser is Hamburg or the purchaser‘s registered office, at fritz‘s discretion. However, for any actions brought against fritz-kola Gmbh in these cases, the exclusive forum is Hamburg. This regulation does not affect any compulsory statutory provisions governing exclusive jurisdiction.
11.3 If the contract or these General Terms and Conditions of Sale are held to contain regu-latory loopholes, those loopholes shall be filled in with the legally effective regulation that the contracting parties would have agreed on if