– Effective from 25 May 2018 –
of the Mauritius Brauerei GmbH, 08066 Zwickau, Germany, Tafelstrasse 2, hereinafter referred to as “Brewery.”
1. Scope of application
The conditions mentioned below apply to business transactions with customers of the Brewery.
We request that orders be placed several days before the desired delivery date. The minimum order value is 1hl; for distributors, 1 pallette. The orders received will be fulfilled according to the specifications and as soon as possible. If a direct delivery has been agreed upon for an order placed on time, then the order will be delivered in accordance with the Brewery’s delivery schedule. There are no deliveries on Saturdays, Sundays or on public holidays.
The Brewery is excempted from its obligation to provide/ deliver in as far as order fulfilment is hindered in whole or in part due to force majeure – especially due to a labour dispute – or if it is obligated to temporarily limit or stop its business operations for the purpose of executing forms of industrial action. For direct deliveries, the customer is obligated to accept the substitute deliveries from the Brewery in case the aforementioned applies.
For products sold directly to consumers at the place of production, the Brewery places the goods into the vehicle of the collector accoding to the instructions of the driver. The Brewery is not the shipper in this case within the meaning of Sec. 412 of the German Commercial Code (HGB). The collector is responsible for complying with the current load securing technologies for secure and safe loading when putting the goods in his vehicle. The collector will employ trained staff, issue instructions in regard to placing the goods on the vehicle and will provide the necessary aids for securing the load. The Brewery will not check the load-securing measures implemented by the collector or his agents. The Brewery is not liable for damages that are a result of insufficient load-security measures.
The Brewery will produce, supply and deliver the beverages in impeccable condition, and observe all existing statutory regulations during production.
Beer should be stored or transported frost-proof, cool and away from sun and light. The ideal beer cellar temperature is between 7 and 8 degrees Celsius.
Any possible complaint must be made by the customer to the Brewery in writing and without delay.
Complaints concerning obvious defects or deviations pertaining to the amounts indicated on the packing slip must be made upon receipt of the goods, or at the latest within 10 days of receipt. Failing which, the Brewery will not be liable for these defects.
In case of legitimate complaints, the Brewery will deliver defect-free goods. For this, the customer must grant the Brewery a reasonable period of time. Fundamentally, only beverages objected to justifiably are entitled to be returned; returns will not be accepted of flawless goods, in order to purchase external beverages or to withdraw from beverage purchasing contracts. In case of a dispute, the Reseach Institute for Brewing and Malting Technology (VLB), Seestrasse 13, 13353 Berlin will act as arbitrator and will make a binding judgement about the quality of the beverages.
The Brewery is liable in compliance with the statutory regulations in case of wilful or gross negligent damages. It is also liable in as far as a contractual obligation was violated culpably. The liability for compensation for the damage instead of fulfilment remains unaffected.
In the above cases – expect in case of liability for intent – the amount of the liability is limited to the typically foreseeable occurring damage.
The legal liability for personal damages in any way whatsoever remains unaffected. Also unaffected by this are the claims of the customer under the German Product Liability Act.
4. Prices and payment
The current list prices issued by the Brewery plus VAT apply.
Price changes are effective once the customer has been notified.
Payments are due immediately without deduction upon receipt of the invoice. Payments of invoices must be made prompty using the SEPA direct debit scheme. Should the customer decide to cancel an agreed upon direct debit scheme before the collection date, then contrary to the legal deadline for first and one-off debits, a cancellation deadline of at least five calendar days before the agreed upon collection date applies; for recurring debits, at least three calendar days before the agreed upon collection date apply. In case of delayed payment, in particular unpunctual payment, the Brewery retains the right to request payment upon pick up or delivery (cash payments) plus a reasonable surcharge, and to make any further provisions/ deliveries dependent on the payment of arrears.
For the administrative costs pertaining to return debits and debt collection, a flat-rate compensation of 5 Euro per individual case will be charged. The customer is free to prove that no damages or lesser damages were incurred. This does not apply to consumers or entrepreneurs.
5. Retention of title
The Brewery retains the right of ownership of the goods until payment has been made in full. If payment was by cheque, the right of ownership is retained until they have been cashed. The resale of goods delivered under the retention of title may only take place within the course of proper business operations. The goods may neither be pawned nor collateralised to third parties.
The customer hereby and in advance transfers any of his claims against third parties for the resale of goods under the retention of title to the Brewery. The Brewery hereby accepts this transfer. The Brewery retains the right to inform the third party as named by the customer of the transfer of claims and to assert the transferred claim in his own name.
The empties to be recycled (cases, returnable bottles, kegs, drink containers, CO2 bottles, palettes, etc.) are only left with the customer for their intended use; it remains the unalienable property of the Brewery. This also applies to empties that retail partners are in possession of or for neutral transport containers.
The Brewery charges a deposit for the empties according to the valid price list; the deposit is due together with the sale price plus VAT. The deposit serves merely as security. It is not, in any case, valid as a basis of assessment for discounts and payments.
The customer must return the empties without delay, or at the lastest within 6 months, in an orderly condition and in the same quantities. When returning drinks where the best before date has expired, only the deposit plus VAT will be refunded. The Brewery always issues credit notes for the returned empties.
The Brewery is only obligated to accept cases that contain bottles that were intended for said cases and that were delivered by the Brewery (so-called sorted reusable empties). When a business relationship has been terminated or when there is a changeover in the type of empties, empties that are still in circulation will only be accepted as returns within a deadline of 3 months.
The customer will receive a statement about the movement of the empties of each respective delivery with every invoice issued by the Brewery. This is considered accepted in as far as the customer does not object in writing to the empties statement within two weeks of receipt.
Empties that were not returned within the allotted timeframe or empties that are damaged will be invoiced at the replacement price of new empties minus a 50% deduction “new for old” while taking into account the respective deposit credit balance. The customer is free to prove that no damages or lesser damages were incurred. The calculation will be made by taking the empties statements as a basis to determine the shortages.
The customer is required to check balance statements and other statements for accuracy and completeness, and any objections must be presented in writing to the Brewery within two weeks of receipt of the balance statement or statement. Failing which, these will be considered approved and accepted once the Brewery has made the customer aware of the possibility to object.
8. Usage arrangements
The customer is obligated to operate, maintain, handle with care and in a proper manner the goods entrusted to him. The maintenance and repair of electronic refrigeration systems, in particular, will be contracted out to a suitable specialist company (e.g. the supplier/ customer service) by the customer. Lost goods or goods that have become unusuable must be replaced with equivalent goods by the customer without delay and transferred into the property of the Brewery.
The customer is obligated to insure the goods sufficiently at replacement value against fire, burglary and water damage, and to keep them insured as well as to notify the insurance company at the same time as the Brewery that the goods are the property of the Brewery. Proof of the insurance coverage must be given to the Brewery at the lastest two months after conclusion of the user contract, as well as successively every year by the 15th of February without being asked and in writing. The customer herewith transfers the entitlement for the insurance sum, including a premium reimbursement, to the Brewery, which in its part, is obligated to transfer back this entitlement once its property has expired. The Brewery hereby accepts the transfer. The customer is obligated to inform us if and when he has transferred the insurance coverage.
In the case of pledging, confiscation or other claims, the customer is obligated to inform the Brewery without delay and writing, to send the Brewery a copy of the seizure report and to take over any possible incurred costs.
The customer does not have the right to deal with these goods, in particular to sell, pledge, rent or loan them, without prior written consent by the Brewery.
In case of breach of obligations, the Brewery can demand from the customer that the goods be either returned in good condition. As an alternative, the Brewery can also demand that the customer purchase the goods at the current market value plus VAT, whereby this contract will also be terminated. This does not apply to consumers or business start-ups. The current market value is estimated by taking the date that the goods were provided to the customer and by deducting 1% monthly of the net new price to compensate for the depreciation of value.
The return of the goods is an obligation that must be fulfilled. Should the customer fall behind with the returns, he then owes the Brewery a user fee, which is calculated per full month in the amount of 1% monthly of the Brewery’s net purchase price plus VAT. The customer is free to prove that no damages or lesser damages were incurred. In order to guarantee professional removal, the customer will generally contract a specialist company designated by the Brewery.
In case of a breach of exclusivity obligation in favour of the Brewery, the Brewery is entitled to an immediate compensation payment from the customer in the amount of at least 50.00 Euro per hl for each hl obtained contrary to contract. The customer is free to prove that no damages or lesser damages were incurred. Should the customer not cease external procurement despite being warned, then the total balance of the remaining contractually agreed upon purchase amount must be paid for immediately with an interest surcharge of 5.5% on the total balance. In regard to the prospective sales that the Brewery will mis out on, the Brewery can estimate these taking into consideration the previous average purchases or other appropriate factors.
The statutory default interest rate applicable to consumers/ entrepreneurs for financing operations is 5 % above the base rate (ECB). Late payments can result in serious consequences for the customer, including foreclosure or the realisation of securities, and may make it more difficult to acquire a loan.
Repeated leniency, especially temporary relief of the customer’s contractional obligations, do not grant future rights and do not represent toleration of infringements or delays and no tacit amendments to the contract.
Verbal sub-agreements to this contract require the written consent of the Brewery in order to be valid.
Many customers are, in referring to the rights and obligations from this contract, joint crediors or joint debtors. All customers are fully liable for trade debts, even if the order was placed by an individual in their employment or by a management representative. They all have authority from one another to accept statements/explanations, in particular notices of termination; this, however, does not apply to severance agreements.
The withdrawal of a joint debtor also applies to the remaining joint debtors. The customer may only delare the set-off with uncontested or legally established debts, or assert rights of retention.
In as far as individual terms of the aforementioned provisions are invalid in part or in whole, then the effectiveness of the remaining provisions remains unaffected.
The customer will automatically be in arreas even without prior warning if the Brewery determines a time in accordance with the calendar, in particular regarding repayment for a service, and the customer does not fulfil payment by this deadline.
In accordance with data protection regulations as per the GDPR, the Brewery refers to the section on Data Protection as outlined on its website www.mauritius-brauerei.de. Information on data protection can be sent to you in writing at any time.
The place of fulfilment and place of jurisdiction is Zwickau, Germany, in as far as the customer is a merchant. The same place of jurisdiction applies if the customer has no general domestic place of jurisdiction or, if after conclusion of contract, he has moved his residence or his permanent address abroad or if his residence or permanent address is unknown at the time of initiation of judicial dunning procedures or the commencement of proceedings. The Brewery may also file action agains the customer at his place of jurisdiction.