1. Scope of application
a) The General Terms and Conditions of Business and Delivery apply to all business relations between the customer and Hofbräuhaus Traunstein.
2. Obligations of the customer to cooperate
a) For the proper handling of business transactions, it is necessary that the customer informs Hofbräuhaus Traunstein immediately of any changes to his name and address as well as the expiry or change of any power of representation granted to Hofbräuhaus Traunstein.
b) This notification obligation also applies if the power of representation is entered in a public register (e.g. commercial register) and its expiry or amendment is entered in this register.
c) The customer undertakes to grant the brewery or its authorized representative access to the balance sheets/accounting. However, this is subject to circumstances occurring or becoming known that justify an increased risk assessment of the claims against the customer. This may be the case in particular if the customer’s financial circumstances have changed adversely or threaten to change.
d) The Customer hereby releases its lawyer, tax consultant and its banks from their duty of confidentiality if circumstances such as those mentioned in Section 10.b. occur or if disputes arise between the Customer and the Brewery and facts subject to the duty of confidentiality are relevant to a decision in this context.
3. Joint and several liability
a) If the customer is more than one natural person or legal entity, they shall be jointly and severally liable for all obligations arising from this contract.
b) They authorize each other to make declarations or take actions vis-à-vis the brewery and to accept corresponding declarations of intent from the brewery.
4. Termination rights of the customer
a) Termination for good cause
If a term or a deviating termination provision has been agreed for a business relationship, termination without notice can only be pronounced if there is an important reason for this which makes it unreasonable for the customer to continue the business relationship, even taking into account the legitimate interests of Hofbräuhaus Traunstein.
b) Statutory rights of termination
Statutory rights of termination remain unaffected.
5. Furniture maintenance and insurance
a) The obligation to maintain and insure applies to furnishings and equipment provided both on loan and on hire.
b) The customer is obliged to treat the furnishings and equipment provided with care.
c) The customer shall carry out any necessary repairs or replacements at his own expense.
d) The customer must adequately insure the equipment against fire, theft and water.
e) The customer shall assign claims arising from insurance losses to the brewery.
f) The customer shall be liable for any fault in the event of loss or deterioration of the items.
g) The customer shall conclude maintenance contracts at its own expense for items that require professional maintenance.
6. Advertising and accessories
a) The Customer may only serve the beverages purchased from the Brewery in glasses or other containers bearing the Brewery’s trademark.
b) The corresponding glasses are to be used for the beer specialties.
c) These glasses or other containers may not be used for serving other people’s drinks.
d) The brewery shall provide the customer with the initial glassware free of charge.
e) The customer undertakes to use the contract goods in the original designation with the original lettering, as well as the brewery’s trademark in the drinks menu.
f) During the term of the contract, the customer is obliged to affix and maintain the brewery’s advertising materials, which the brewery may make available to the customer, to the usual extent on and in the contractual property.
g) Should the customer incur electricity costs or public charges for advertising material, he shall bear these himself.
h) In the event of premature termination of the contract for which the customer is responsible, the customer is obliged to redeem the advertising installations at the linear residual value of the unfulfilled contract term.
7. Invoicing, payment, due date
a) Invoices shall be issued exclusively in electronic form to the e-mail address provided by the customer. The customer must notify Hofbräuhaus Traunstein immediately in writing and in a legally valid manner of any change to the e-mail address to which the invoice is to be sent.
b) The brewery is entitled to use incoming payments and credit notes at its discretion to settle any outstanding services, claims from deliveries or other claims.
c) The beverages are due for payment immediately upon delivery without deduction.
d) Invoicing by the driver is subject to correctness.
e) The invoice must be checked for accuracy immediately upon receipt and is due for payment without deduction upon receipt.
f) Payments to our drivers are only valid if the receipt of the amount has been duly acknowledged by the driver on the invoice or on the delivery bill.
g) Other payments shall only be deemed to have been made when the amount is available to the brewery for further use, in the case of direct debit, when the customer’s bank carries out the proper encashment of the direct debit
h) The customer authorizes the brewery to issue a SEPA business-to-business direct debit mandate.
i) All incoming payments shall be credited to the customer account of the existing debt balance and offset against the oldest outstanding invoice.
j) The Customer may only offset against claims of the Brewery if its claims are undisputed or have been legally established.
k) Default interest of 9% above the respective base interest rate may be charged in the event of overdue payments.
l) Furthermore, the customer may only assert a right of retention on the basis of undisputed or legally established claims.
m) Upon termination of the business relationship, the balance of any current account held for the customer, including any accounts still to be settled, shall be due for immediate repayment.
8. Applicable law and place of jurisdiction for commercial and public law customers
a) The business relationship between the customer and Hofbräuhaus Traunstein shall be governed by German law.
b) If the customer is a legal entity or a merchant to whom the disputed business relationship is attributable to the operation of his commercial business, the place of jurisdiction shall be the court with local and material jurisdiction at the brewery’s registered office.
c) The agreement on the place of jurisdiction also applies to customers who carry out a comparable commercial activity abroad and to foreign institutions that are comparable to domestic legal entities.
d) The court shall have subject-matter and local jurisdiction in the event that the party against whom a claim is brought moves its domicile or habitual residence outside the scope of the German Code of Civil Procedure after conclusion of the contract or its domicile or habitual residence is unknown at the time the action is brought.
9. Invoice endorsements
a) Objections to automatic or handwritten account statements, delivery bills and invoices as well as other statements, including empties statements on account delivery bills, must be received by us in writing within 8 days of receipt of the relevant document.
b) Failure to lodge complaints in good time shall be deemed to constitute approval.
c) The customer may also demand a correction of the statements referred to in paragraph (1) after the expiry of the deadline, but must then prove that his account was wrongly debited or that a credit note to which he is entitled was not issued.
10. Creation or strengthening of securities
a) Hofbräuhaus Traunstein may demand the provision of bank securities for all claims arising from the business relationship, even if the claims are conditional. If the customer has assumed liability towards Hofbräuhaus Traunstein for the liabilities of another customer of Hofbräuhaus Traunstein (e.g. as guarantor), Hofbräuhaus Traunstein shall only be entitled to demand the provision or strengthening of collateral with regard to the debt resulting from the assumption of liability from the time it falls due.
b) If Hofbräuhaus Traunstein has initially refrained in whole or in part from demanding the provision or strengthening of collateral when claims against the customer arise, it may still demand collateralization at a later date. However, the prerequisite for this is that circumstances arise or become known which justify an increased risk assessment of the claims against the customer. This may be the case in particular if the customer’s financial circumstances have changed or threaten to change adversely or if the value of the existing collateral has increased have deteriorated or threaten to deteriorate. In the case of consumer loan agreements, the entitlement to the provision or strengthening of collateral only exists insofar as the collateral is specified in the loan agreement. If the net loan amount exceeds € 75,000.00, the claim to the provision or strengthening of collateral shall also exist if the loan agreement contains no or no conclusive information on collateral.
c) Hofbräuhaus Traunstein shall grant a reasonable period of time for the provision or strengthening of collateral. If Hofbräuhaus Traunstein intends to make use of its right to terminate without notice in accordance with clause 9 (1) j) of the individual agreement if the customer does not fulfill his obligation to provide or increase collateral in due time, it will inform him of this in advance.
11. Agreement of a lien in favor of Hofbräuhaus Traunstein
a) The customer and Hofbräuhaus Traunstein agree that Hofbräuhaus Traunstein shall acquire a lien on the items brought into the contractual object. Hofbräuhaus Traunstein also acquires a lien on the claims that the customer has or will have in the future against Hofbräuhaus Traunstein arising from the business relationship.
b) The lien serves to secure all existing, future and conditional claims that Hofbräuhaus Traunstein is entitled to from the business relationship with the customer. If the customer has assumed liability towards Hofbräuhaus Traunstein for the liabilities of another customer of Hofbräuhaus Traunstein, the right of lien shall only secure the debt resulting from the assumption of liability from its due date.
12. Scope of the collateralization
All assets pledged to Hofbräuhaus Traunstein and otherwise serving it as security shall be liable for all claims of Hofbräuhaus Traunstein, even if they have only been given as security for a specific claim, unless liability for other claims has been expressly excluded.
13. Limitation of the security claim and release obligation
a) Hofbräuhaus Traunstein may assert its claim to the provision or strengthening of collateral until the realizable value of all collateral corresponds to the total amount of all claims arising from the business relationship.
b) If the realizable value of all securities exceeds the cover limit not only temporarily, Hofbräuhaus Traunstein shall, at the customer’s request, release securities at the discretion of Hofbräuhaus Traunstein in the amount exceeding the cover limit. When selecting the securities to be released, Hofbräuhaus Traunstein shall take into account the legitimate interests of the customer and a third party guarantor who has provided securities for the customer’s liabilities.
14. Realization of collateral
If Hofbräuhaus Traunstein has realized collateral, Hofbräuhaus Traunstein has the choice between several securities. Hofbräuhaus Traunstein shall take into account the legitimate interests of the customer and a third party guarantor who has provided collateral for the customer’s liability when realizing and selecting the collateral to be realized.
15. Retention of title
a) Hofbräuhaus Traunstein retains title to the goods until all claims of Hofbräuhaus Traunstein against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled.
b) This also applies if individual or all claims of the brewery have been included in a current account and the balance has been drawn and recognized.
c) The customer is only entitled to resell the reserved goods in the ordinary course of business if he hereby assigns to the brewery all claims that accrue to him from the resale against customers or third parties.
d) If goods subject to retention of title are sold unprocessed or after processing or combination with objects that are the exclusive property of the customer, the customer hereby assigns the claims arising from the resale in full to the brewery.
e) If goods subject to retention of title are sold by the customer after processing or combination together with goods not belonging to the brewery, the customer hereby assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest.
f) The brewery accepts the assignment.
g) The customer is authorized to collect these claims even after assignment.
h) The Brewery’s authority to collect claims itself remains unaffected by this. However, the Brewery undertakes not to collect the claims as long as the Customer duly fulfills its payment and other obligations. The Brewery may demand that the Customer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor of the assignment.
i) The processing or transformation of goods subject to retention of title shall always be carried out by the Customer on behalf of the Brewery. If the reserved goods are processed with items owned by the customer or with items for which there is no extended retention of title, the brewery is entitled to sole ownership of the new item.
j) If the reserved goods are processed with other items not belonging to the customer, the brewery shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing.
16. Handling of goods
Goods subject to the Foodstuffs Act must be stored in a cool and dark place. In all other respects, reference is made to Appendix 1.
17. Loaned items
a) Short-term loan items for which a return date has been agreed at the time of borrowing will be charged at the applicable list prices once the return date has been exceeded.
b) If the return date is exceeded, the loan will be replaced by a purchase.
c) Long-term rental items for which no return date has been agreed at the time of rental may be reclaimed by the brewery.
d) The borrower undertakes, subject to liability for loss and damage, to treat the loaned items carefully and appropriately during the loan period, to carry out any necessary repairs at his own expense without replacement and to notify the brewery immediately of the assertion of third-party rights.
e) Ongoing operating and maintenance costs during the term are the responsibility of the borrower.
f) Upon termination of the business relationship or when purchasing beverages from third parties, the Brewery may, at its discretion, either demand immediate payment of the items at the applicable list prices or immediate return (§604 BGB) without setting a grace period.
g) This also applies to installed items.
h) For the return of rental items, only the rental inventory return slips duly issued by us shall be recognized.
18. Rented items
a) Insofar as inventory items are provided to the customer on a rental basis, these are to be paid to the brewery at the applicable rate.
b) The rental rates according to the respectively valid price list plus the respectively valid statutory VAT shall apply.
a) Barrels, containers, crates, bottles and pallets are the exclusive, inalienable property of the brewery, even in the case of cash deposit collection, and are only handed over on loan.
b) Empties are to be returned to the brewery consignment by consignment within 4 weeks at the latest.
c) Empties that are missing for a longer period of time are considered lost and can be invoiced at the respective daily purchase price.
d) The customer is therefore obliged to check the empties entered by the driver on the delivery bill for quantitative and factual correctness immediately after receipt of a consignment.
e) The same applies to confirmations issued by the driver regarding the return receipt of empties.
f) The empties invoice shall be based exclusively on the driver’s delivery or return receipt confirmations.
A deposit is agreed for returnable bottles. The deposit rates for the individual containers shall apply in accordance with the currently valid price list, plus the applicable statutory VAT.
21. Data protection
a) Forwarding of purchase figures: The Customer hereby expressly agrees that the Brewery may at any time request from the Customer’s beverage wholesaler all purchase figures of purchased beverages which were produced by the Brewery and delivered to the Customer via the beverage wholesaler. The customer has the right to revoke his consent at any time.
b) The personal data required for the business relationship, in particular name, address, telephone number and, if applicable, bank details, which are necessary and required solely for the purpose of implementing the resulting contractual relationship, are collected on the basis of legal authorization. As part of the new General Data Protection Regulation, which came into force throughout the EU on May 25, 2018, we ask for your consent to use your data as described in the document “Written consent in accordance with the General Data Protection Regulation”.
22. Order acceptance
a) Punctual delivery is only guaranteed if the order is placed no later than 12.00 noon on the day before the agreed delivery date.
b) Orders are only accepted between Monday and Friday.
23. Final provisions
a) Place of fulfillment is Traunstein.
b) Short years shall be invoiced pro rata. The billing year is the calendar year.
c) This contract has been thoroughly discussed, read, approved and signed by the contracting parties by way of mutual negotiation, whereby it is hereby confirmed that each contracting party has received a copy of the contract.
d) Agreements by which these Terms and Conditions of Business and Delivery are to be amended in individual cases shall only be legally valid if they have been confirmed by us.
e) Should individual provisions of this contract be invalid or incomplete, this shall not affect the remainder of the contract. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to what the contracting parties would have wanted if they had considered the point when concluding this contract.
f) Even after termination of the business relationship, the General Terms and Conditions of Business shall continue to apply until its complete settlement.
g) The brewery reserves the right to amend the General Terms and Conditions of Business and Delivery. Accordingly, the General Terms and Conditions of Business and Delivery as amended from time to time shall apply.