GENERAL TERMS AND CONDITIONS OF BUSINESS

1. Scope

1.1. These General Terms and Conditions (“GTC”) apply to WINE DELIVERIES between NESTOR part of NEUKAMP & PARTNER Risk Consulting GmbH (“NESTOR”) and a Business customers (does not apply to consumers/private customers!) and form the basis of every declaration addressed to the customer in the currently valid version and can also be accessed at www.delfabrokolarik.at. Any declaration deviating from these GTC is only effective if confirmed in writing by NESTOR.
1.2. General terms and conditions of the customer are excluded for the entire business relationship, unless these have been accepted in writing by NESTOR in the individual business case. Absence of objection does not mean consent in any case.
1.3. If the client has concluded additional written contracts with NESTOR, these GTC apply only to the extent that they do not contradict the contents of the contract.
1.4. If, by way of exception, these GTC are also based on legal transactions with consumers, they shall only apply to the extent that they do not conflict with any mandatory statutory provisions for consumers.

2. Offers

2.1. Offers from NESTOR are only binding if they are made in writing and expressly designated as binding offers.
2.2. Calculation, calculation and spelling errors entitle NESTOR to adjust or correct them.

3. Container, deposit

3.1. Reusable containers are only provided to the customer on loan against payment of a deposit (see price list) and remain the property of the respective producer.
3.2. The return of empty containers to the customer is subject to downstream control and recording by NESTOR. Counting by NESTOR in the course of control and registration is considered accepted by the client.
3.3. The reusable minimum bid announced by NESTOR is expressly deemed to be accepted if no objection is made in writing within 14 days.
3.4. Container may be used exclusively for the purpose of transportation and storage of the goods purchased from NESTOR. The deposit will be refunded if the undamaged and reusable empties are returned.
3.5. It is at NESTOR’s discretion to take back empties that come from other suppliers.

4. Retention of title

4.1. Delivered or handed over goods remain the property of NESTOR until full payment of the purchase price including ancillary claims.
4.2. If the customer does not sell the goods to end consumers, the customer already now assigns his claims from the resale of the goods against the respective buyers until the fulfillment of all claims of NESTOR on account of payment and commits himself to inform his buyers about this at the latest at the conclusion of the contract as well as to arrange for the remark of the assignment in his books. Upon NESTOR’s request, the customer is obligated to immediately disclose the third party debtor. NESTOR is entitled to collect its claims from the third-party debtor itself.
4.3. Access of third parties to the goods (esp. seizures) must be reported to NESTOR immediately and NESTOR must be provided with all information necessary to enforce the right of ownership.
4.4. The customer shall insure the goods subject to retention of title and keep them in a proper and clean condition.

5. Prices and discounts

All prices are exclusive of all taxes and any container deposit. Discount information in percent refers to list prices excluding all taxes and container deposit. Discounts or rebates of any kind whatsoever shall not entitle the Customer to the granting of such discounts or rebates in the future.

6. Deliveries

6.1. Deliveries are made on the agreed delivery date within the agreed delivery window. The customer must ensure access and availability of the delivery address during the agreed delivery window. In case of refusal of acceptance or absence (default of acceptance), NESTOR is entitled to either place the goods in front of the delivery address at the customer’s risk or to charge the customer for the costs incurred for this. The placing of the goods is considered as acceptance.
6.2. Upon receipt of the goods, the customer must check the condition and completeness of the goods. By signing the delivery bill, the customer confirms the flawless condition and completeness of the delivery. In the absence of persons authorized to sign or in the case of signature by prima facie agents, the delivery shall be deemed to have been duly and completely handed over as indicated on the delivery bill.
6.3. Visible defects (e.g. shortages, damage) must be noted immediately on the delivery bill and confirmed with signature. Hidden defects must be reported in writing immediately, but no later than 3 days after discovery. If a notice of defect is not raised or not raised in time, the goods shall be deemed to be accepted as flawless and complete.
6.4. The risk shall pass to the customer upon acceptance of the goods and default in acceptance.
6.5. In case of delivery against cash payment the invoice is at the same time the delivery bill. NESTOR is entitled to refuse delivery in the absence of cash payment or to make a partial delivery. The costs incurred for the frustrated delivery will be charged to the customer.
6.6. The customer shall not be entitled to any claims arising from the exceeding of announced and agreed delivery dates – except in the case of fixed-date transactions. For the duration of the impediment (e.g. force majeure, operational disruptions, delay in delivery by the upstream supplier, events that can only be eliminated with unreasonable effort), NESTOR is released from the obligation to deliver. The customer is obliged to accept after the elimination of such hindrances.
6.7. Partial deliveries are permitted and entitle NESTOR to issue partial invoices.

7. Commission and other returned goods

7.1. Unless it is a commission business, NESTOR is not obliged to take back goods outside of warranty claims. Nevertheless, goods taken back as a gesture of goodwill do not entitle the customer to returns of defect-free goods in the future. In any case, the following shall apply to returned goods accepted on commission or as a gesture of goodwill:
7.2. (commission or other) Goods can only be returned to NESTOR in their original packaging and in perfect resalable condition. The assessment of proper return is at the discretion of NESTOR.
7.3. NESTOR reserves the right to dispose of (consignment or otherwise) merchandise returned in non-resalable condition or purchased from other beverage distributors at its discretion. The customer cannot derive any (replacement) claims from this.
7.4. The return of (commission or other) goods from the customer is subject to downstream control and recording by NESTOR. Counting by NESTOR in the course of control and registration is considered accepted by the client.

8. Lending of inventory and dispensing equipment (“inventory”)

8.1. Despite the provision of inventory free of charge, the customer shall pay the associated ancillary costs (in particular storage or delivery of the inventory, travel allowances/travel expenses, assembly) or commission any necessary preparatory work in its own name and for its own account (in particular wall breakthroughs, water installations, electrical connections, hot water valves) from licensed companies.
8.2. The customer shall treat the inventory with care and maintain it at his own expense (in particular cleaning, maintenance) and insure it against any damage or destruction.
8.3. The customer is liable for any damage or destruction of the inventory.
8.4. Access by third parties, esp. seizures, must be notified to NESTOR without delay, providing all the information necessary to enforce the right of ownership.
8.5. NESTOR reserves the right to terminate the loan at any time at its sole discretion. Upon termination of the loan, the inventory must be kept cleaned and ready for pickup by NESTOR at the client’s expense. This also applies to the case of fixed installations or connections with property of the customer or third parties. Instead of taking back the inventory, NESTOR can also demand payment of the current value. In this case, ownership of the items shall pass to the customer upon payment.

9. Terms of payment

9.1. Payments shall be made upon acceptance of the goods without any deduction against cash payment. In the case of an agreed payment term, NESTOR can demand delivery against cash payment if the customer does not pay receivables on time, does not honor bank collections, or if the customer’s creditworthiness deteriorates. NESTOR may refuse deliveries entirely in the event of late payment until the arrears are paid.
9.2. The customer is not entitled to withhold payments or to set them off against counterclaims that have not been judicially determined or recognized by NESTOR.
9.3. NESTOR is entitled to retain agreed discounts and to offset them against unpaid claims against the customer.
9.4. Payments by the customer or retained discounts are credited according to the redemption rule.
9.5. Even in the case of a delay in payment through no fault of its own, NESTOR is entitled to charge interest on arrears of 12% per annum. The charging of lower default interest – in particular as a concession to the customer – shall not constitute a waiver of the right to charge 12% default interest. For reminders up to € 40,- in reminder fees will be charged.
9.6. If partial or installment payments are agreed upon with the customer, loss of payment date shall occur in the event that even only a part of an installment is not paid on time, so that all claims including the aforementioned interest on arrears shall become due for immediate payment. When agreeing on partial or installment payments, the customer declares to irrevocably waive the objection of the limitation of claims.

10. Warranty, Liability, Defects of Will

10.1. The warranty period is 3 months. The customer must always prove that the defect was present at the time of acceptance. NESTOR reserves the right to fulfill a justified warranty claim by improvement, replacement or price reduction at its discretion.
10.2. The assertion of claims for damages is excluded in cases of slight negligence – except for personal injury. The customer must prove the existence of gross negligence or intent. Claims for compensation become time-barred 12 months after knowledge of the damage and the damaging party. Liability for consequential damages and lost profits is excluded.
10.3. The assertion of defects of intent (e.g. error) is excluded.
10.4. All products distributed by NESTOR comply with the relevant Austrian laws in their nature (e.g. minimum shelf life) and presentation (e.g. labeling). In case of export from Austria by the customer, the customer bears the sole responsibility regarding the compliance with the relevant regulations outside of Austria, in particular with regard to food, labeling, consumer protection and competition law and the customer has to fully indemnify and hold NESTOR harmless in this respect. The assertion of warranty claims and claims for damages is excluded in these cases.

11. Trade secret protection

All information underlying the business relationship is subject to secrecy protection and may only be disclosed if legal requirements are met.

12. Data/data protection

NESTOR does not disclose the customer’s personal data to third parties without the customer’s consent, unless NESTOR is entitled or obligated to disclose data due to legal provisions and/or official or judicial orders. For the purpose of group-wide administration of customer and contract data, delivery and payment modalities or payment practices, as well as for contract processing, the customer’s data accruing during the business relationship shall be transmitted to the group company Ottakringer Getränke AG. Questions regarding the collection, processing and use of personal data of natural persons by NESTOR may be addressed to datenschutz@delfabrokolarik.at.

13. Place of performance, applicable law and place of jurisdiction

13.1. The place of performance is the registered office of NESTOR.
13.2. Austrian law shall apply, but not the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction shall be the competent court in Vienna.

Status June 2023