General Terms and Conditions

(1) These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (“Buyers”). The GTC apply only if the Buyer is a trader (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) These GTC apply in particular to contracts for the sale and/or supply of movable goods (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). Unless otherwise agreed, these GTC, in the version current at the time of the Buyer’s order or, at the latest, in the version most recently communicated to the Buyer in writing, shall also apply as a framework agreement to future contracts of the same nature, without us having to refer to them again in each individual case.
(3) These GTC apply exclusively. Any conflicting, supplementary or deviating terms and conditions of the buyer shall only be valid if we have expressly agreed to their inclusion. This consent requirement applies in all cases, even if the buyer refers to their General Terms and Conditions in the order and we do not expressly object.
(4) Individual agreements (e.g., framework supply contracts, quality assurance agreements) and details set out in our order confirmation take precedence over these General Terms and Conditions. In cases of doubt, trade terms shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time the contract is concluded.
(5) Any legally relevant declarations or notices from the buyer related to the contract (e.g., setting deadlines, reporting defects, withdrawing or reducing the order) must be in writing. For the purposes of these General Terms and Conditions, “in writing” includes both written and text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, in particular where there is doubt as to the legitimacy of the party making the declaration, remain unaffected.
(6) References to the applicability of statutory provisions are for clarification purposes only. Even in the absence of such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

(1) Our offers are subject to change and non-binding. This also applies where we have provided the purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents—including electronic files—to the buyer, in respect of which we reserve ownership and copyright. Samples and specimens provided by ÖMA Beer GmbH. serve to describe the product and do not constitute a warranty of quality. Warranties of quality are given exclusively in writing.
(2) The buyer’s order for the goods shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept this offer within 3 days of its receipt by us.
Acceptance may be declared in writing (e.g., by order confirmation) or by delivering the goods to the buyer.
(4) Orders are generally placed on the day before the delivery date. Any follow-up orders to the main order can only be processed properly by ÖMA Beer GmbH if they are received by ÖMA Beer GmbH by 10:30 a.m. at the latest on the delivery date. Should the follow-up order not be received by ÖMA Beer GmbH within the specified time, ÖMA Beer GmbH reserves the right to deliver it as part of the main order at a later date.

(1) Delivery times are agreed on a case-by-case basis or specified by us upon acceptance of the order. Unless otherwise stated, delivery is approximately 1 week from the conclusion of the contract.
(2) If we are unable to meet binding delivery times for reasons beyond our control (unavailability of the goods), we shall inform the buyer of this without delay and, at the same time, notify them of the expected new delivery time. If the service remains unavailable even within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall refund any consideration already paid by the buyer without delay. Goods or services shall be deemed unavailable, for example, if our supplier delivers late despite a matching hedging transaction, in the event of other disruptions in the supply chain such as force majeure, or if we are not obliged to procure the goods or services in individual cases.
(3) Any delay on our part is assessed in accordance with statutory provisions; however, a formal notice of default from the buyer is always required. If we are in default, the buyer may claim lump-sum compensation for the resulting delay. The flat-rate compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of delay, up to a maximum total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has suffered no loss at all or only a loss substantially less than the above flat-rate amount.
(4) The buyer’s rights under Clause 8 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

(1) Goods are delivered ex-warehouse, which also serves as the place of performance for delivery and any subsequent services. At the buyer’s request and expense, we will ship the goods to another destination (sale by delivery). Unless otherwise agreed, we reserve the right to select the shipping method (including carrier, route, and packaging).
Deliveries are made twice a week. Other delivery frequencies require separate written agreements and may be offered by ÖMA Beer GmbH on terms other than those set out below. The minimum order quantity is 50 kg. For orders of 300 kg or more, delivery costs equivalent to ÖMA Beer GmbH’s current freight rate (€/kg) are waived, and delivery is carriage paid. Delivery is ex-warehouse, which is also the place of performance for delivery and any subsequent performance. For deliveries outside Germany, freight costs are negotiated on a case-by-case basis and set out in writing. Unless otherwise agreed in writing, delivery to ÖMA Beer GmbH must be made ‘carriage paid’.
Sales promotions and other separate marketing agreements can only be implemented with at least 14 days’ notice. At least 85% of the quantities ordered in each instance must be taken off.
 
(2) The risk of accidental loss or accidental deterioration of the goods passes to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the buyer’s premises, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer upon handover of the goods to the forwarding agent, the carrier or any other person or organisation designated to carry out the dispatch. Where acceptance is agreed, it shall determine the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to any agreed acceptance. Handover or acceptance shall be deemed to have taken place even if the buyer is in default of acceptance.
If the buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to claim compensation for the resulting loss, including additional expenses (e.g. storage costs). In such cases, we charge a flat-rate compensation of €100 per calendar day, starting from the delivery deadline or—if no deadline has been set—from the date we notify you that the goods are ready for dispatch.
Our right to prove higher damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat-rate compensation shall be set off against any further monetary claims. You may demonstrate that no loss or a significantly lower loss than the flat-rate amount occurred.

(1) Unless otherwise agreed in individual cases, our prices current at the time the contract is concluded shall apply, ex-warehouse, plus statutory VAT.
(2) In the case of sale by delivery (Section 4(1)), the buyer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the buyer. Unless we invoice the actual transport costs incurred in a specific case, a flat-rate transport charge (excluding transport insurance) of €300 shall be deemed to have been agreed. Any customs duties, fees, taxes and other public levies shall be borne by the buyer.
(3) The purchase price is due and payable within 14 days of the invoice date and delivery or acceptance of the goods. However, we are entitled at any time, even within the context of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment. We will inform you of any such reservation at the latest when confirming your order.
(4) If the aforementioned payment period expires, you will be in default. During this period, interest will be charged on the purchase price at the applicable statutory rate for late payment. We reserve the right to claim further damages arising from default. Our entitlement to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in dealings with traders.
(5) You may only offset or withhold payment if your counterclaim is legally established or uncontested. If a delivery has defects, your rights under Section 7(6), second sentence, of these Terms remain unaffected.
(6) If, after the contract is concluded, it becomes apparent (e.g., through an application for insolvency proceedings) that our claim to the purchase price is at risk due to the buyer’s inability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and, where applicable, after setting a deadline — to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-replaceable goods (bespoke items), we may declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a time limit remain unaffected.

(1) We retain title to the goods sold until full payment has been made of all our present and future claims arising from the sales contract and an ongoing business relationship (secured claims).
(2) Goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims are fully paid. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) seek to seize the goods belonging to us.
(3) If the buyer breaches the contract, in particular by failing to pay the purchase price when due, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. A request to return the goods does not automatically constitute a declaration of withdrawal; rather, we are entitled merely to request the return of the goods while reserving the right to withdraw from the contract. If the buyer fails to pay the purchase price due, we may only exercise these rights if we have previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is not required under the statutory provisions.
(4) Until further notice in accordance with clause (c) below, you may continue to sell or process our goods in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the full value of any products resulting from the processing, mixing or combining of our goods, in which case we shall be deemed the manufacturer. If processing, mixing or combining with goods belonging to third parties, and their ownership right remains in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same provisions shall apply to the resulting product as to the goods delivered subject to retention of title.
(b) The buyer hereby assigns to us, by way of security, all claims against third parties arising from the resale of the goods or the resulting product, either in full or to the extent of our share of co-ownership in accordance with the preceding paragraph. We accept this assignment. The Buyer’s obligations set out in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Buyer remains authorised, alongside us, to collect the claim. We undertake not to collect the claim so long as the Buyer meets its payment obligations to us, there is no impairment of its ability to pay, and we do not assert the retention of title by exercising a right in accordance with paragraph 3. Should any of these conditions be met, we may request that the buyer disclose the assigned claims and their debtors to us, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. In such a case, we may also revoke the buyer’s authority to resell or process the goods subject to retention of title.
(d) If the realisable value of the security exceeds our claims by more than 10 per cent, we will, at the buyer’s request, release security at our discretion.

(1) Unless otherwise specified below, the statutory provisions apply to the purchaser’s rights in the event of material defects and defects of title (including incorrect or short deliveries, as well as improper assembly/installation or defective instructions). The statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)) and the buyer’s rights arising from separately issued guarantees, in particular those provided by the manufacturer, remain unaffected.
(2) Our liability for defects is based, first and foremost, on the agreement reached regarding the quality and the intended use of the goods (including accessories and instructions). All product descriptions and manufacturer specifications that are part of the individual contract or that were publicly disclosed by us (particularly in catalogues or on our website) at the time the contract was concluded shall be deemed to constitute an agreement on quality in this sense. If no specific quality is agreed upon, the statutory provisions (Section 434(3) of the German Civil Code (BGB)) apply to determine whether a defect exists. Public statements made by the manufacturer or on its behalf, in particular in advertising or on the product label, take precedence over statements made by other third parties.
(3) For products that include digital elements or other digital content, we will provide and, where applicable, update such content only to the extent that this is explicitly specified in the quality agreement under Paragraph 2. We assume no liability for public statements made by the manufacturer or other third parties in this regard.
(4) We are generally not liable for defects that the buyer knew about at the time the contract was concluded or that the buyer was unaware of due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, any claims for defects are contingent upon the buyer having fulfilled their statutory obligations to inspect the goods and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). For building materials and other goods intended for installation or further processing, an inspection must be carried out immediately before processing. If a defect becomes apparent upon delivery, during inspection, or at any later point, please notify us in writing without delay. In all cases, obvious defects must be reported in writing within 2 working days of delivery, and defects not detectable during inspection must be reported in writing within the same period from the date of discovery. If the buyer fails to carry out a proper inspection and/or to give notice of defects, our liability for defects that have not been reported, or have not been reported in good time or properly, is excluded in accordance with the statutory provisions.
(5) If a delivered product is defective, we may initially choose whether to remedy the defect (repair) or to supply a replacement product free from defects. If the chosen remedy is unreasonable for you in the specific case, you may reject it. Our right to refuse remedy in accordance with statutory requirements remains unaffected.
We may make our performance conditional on payment of the due purchase price; however, you may withhold a portion of the price commensurate with the defect.
Please give us the time and opportunity to carry out the necessary remedial action, including handing over the goods in question for inspection. If we arrange a replacement delivery, you must return the defective goods to us in accordance with the statutory provisions; however, you do not have an independent right to return the goods. Our obligation does not include removing the defective product or installing the replacement if we were not originally responsible for these services; The buyer’s claims for reimbursement of corresponding costs (“removal and installation costs”) remain unaffected.
(8) We will cover or reimburse the costs necessary for inspection and subsequent performance, including transport, travel, labour and material expenses, in accordance with the statutory provisions and these General Terms and Conditions of Sale, provided that a defect actually exists. Otherwise, we may request that the buyer reimburse us for the costs incurred as a result of the unjustified request for rectification of the defect, if the buyer knew or should have realised that no defect actually existed.
(9) In urgent cases, such as when operational safety is at risk or to prevent disproportionate damage, you may remedy the defect yourself and request reimbursement of the objectively necessary expenses. Please notify us without delay, and if possible in advance, of any such self-remedy. This right does not apply if we would be entitled to refuse corresponding subsequent performance under statutory provisions.
(10) If a reasonable period set by the buyer for remedial action expires without result, or if such a period is dispensable under the statutory provisions, the buyer may, in accordance with the statutory provisions, withdraw from the sales contract or reduce the purchase price. However, in the case of a minor defect, there is no right of withdrawal.
(11) Claims by the buyer for reimbursement of expenses pursuant to Section 445a(1) of the German Civil Code (BGB) are excluded, unless the final contract in the supply chain is a contract for the sale of consumer goods (Sections 478, 474 of the German Civil Code (BGB)) or a consumer contract for the provision of digital products (Sections 445c, sentence 2, 327(5) and 327u of the German Civil Code (BGB)). Claims for damages or reimbursement of futile expenses (Section 284 of the German Civil Code (BGB)) are only applicable in accordance with Sections 8 and 9 below, even in the event of defects.

(1) Unless otherwise provided for in these General Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis – under the principle of fault-based liability in cases of wilful misconduct and gross negligence. In cases of simple negligence, subject to statutory limitations on liability (e.g., due care in our own affairs; minor breach of duty), we shall be liable only
a) for damage resulting from injury to life, limb, or health,
b) for damage resulting from a breach of an essential contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely); in which case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) These limitations also apply to third parties and to breaches of duty by persons for whose acts we are liable under the law. These limits do not apply if we fraudulently conceal a defect, if we have given a specific quality guarantee, or if the buyer has claims under the Product Liability Act.
(4) If we breach a duty that is not related to a defect, you may only rescind or terminate the contract if we are at fault. Any unrestricted right to terminate (in particular under Sections 650 or 648 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

(1) Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title is one year from delivery. Where acceptance has been agreed, the limitation period begins upon acceptance.(2) These sales-law limitation periods also apply to the buyer’s contractual and non-contractual claims for damages arising from a defect in the goods, unless application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in individual cases. The purchaser’s claims for damages pursuant to Section 8(2), sentences 1 and 2(a), and under the Product Liability Act are subject exclusively to the statutory limitation periods.

(1) These General Terms and Conditions of Sale and the contractual relationship between us and the buyer are governed by the law of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a trader within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Lindenberg/Allgäu The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the buyer’s general place of jurisdiction. Prevailing statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
(3) The place of performance is the registered office of ÖMA Beer GmbH, or the location expressly designated by ÖMA Beer GmbH for the performance of the service.

Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions. Should any provision of these terms be deemed invalid, the parties undertake to replace it with a valid provision that best achieves the original purpose, consistent with the contract as a whole.Any amendment must be made in writing.