Terms and Conditions
General conditions of sale and delivery Weingut Hans Gsellmann KG
1. General Application
All deliveries, services and offers of Weingut Hans Gsellmann KG (hereinafter referred to as „contractor“) are exclusively based on these terms and conditions. Any terms and conditions of the contractual partner (hereinafter also referred to as „customer“) that contradict or deviate from these Terms and Conditions of business shall only apply to the extent that they do not contradict these Terms and Conditions of business of the contractor and only if the contractor has expressly agreed to their validity; in particular, no contractual performance actions of the contractor shall be deemed to be consent to deviating contractual terms and conditions.
2. Offers, reservations and contract conclusion
All illustrations, drawings, material, weight, measurement and price specifications, etc. contained in offers, advertising materials and other documents of the contractor are non-binding, unless they are expressly declared in writing to be part of the contract. A contractual offer by a customer requires a written order confirmation by the contractor or the dispatch of the goods ordered by the customer in order to be valid. Should the reservation of quantities of goods be necessary for individual types of wine, the customer shall be bound to his reservation requests for a period of [… months]. Unless otherwise expressly stated in writing, the customer’s commitment to his reservation shall also apply if only a quantity less than that specified in the reservation is available. The contractor shall send the customer a non-binding written reservation confirmation in which the customer is informed of an expected period for the delivery of the goods. Reservation requests will be ranked by date of receipt and the reserved goods will be allocated (pro rata) according to the later stock of goods. The contract is not valid until the customer is informed that the reserved quantity of goods or a corresponding proportion thereof is available. The reserved goods must be received by the customer within a period of [… weeks] from the announcement of availability. If the customer is in default with the acceptance of reserved goods, the contractor is entitled, irrespective of any claims for damages, to withdraw from the contract and to sell the goods to third parties, setting a grace period of [… days].
All prices quoted by the contractor are ex-works (ex cellar) and are exclusive of VAT, unless otherwise expressly stated. Included in the price are glass bottles and a simple, customary packaging of the goods; special packaging, loading, transport and transport insurance, etc. are to be borne separately by the customer. The contractor is entitled to adjust the price if there are at least  months between the conclusion of the contract and delivery and relevant cost elements have changed more than only slightly. However, the contractor may also adjust the price if the customer requests changes to the delivery date, quantity or quality of the ordered goods after conclusion of the contract.
4. Terms of payment
Payments are to be made in full in advance. If a different payment term is agreed in individual cases, all payments must be made immediately after receipt of the invoice or within the period of time stated on the invoice and shall only be deemed to have discharged the debt upon receipt on the contractor’s business account. In the event of default of payment, the customer is obliged to pay interest on arrears at a rate of 12% p.a. and to reimburse all reminder and collection expenses incurred by the contractor, regardless of whether these are external or internal expenses.
5. Reservation of ownership
The delivered goods remain our property until the purchase price including interest and costs has been paid in full. This retention of title shall also apply in the event of further processing by the customer as long as the goods have not been paid for in full. Resale of goods subject to retention of title is only permitted with our written consent. In any case, however, the retention of title shall also extend to the remuneration received from the third party and to the purchase price claim against the third party. The customer undertakes to assign any purchase price claims against third parties with legal effect.
The customer is obliged to inform us immediately of any access by third parties to the goods delivered under retention of title.
If the customer is in default of payment, he shall, upon request, deposit the goods at his expense at a place to be determined by us, for our security, or send them at his expense to an address to be determined by us. If the customer is in default of payment, we are entitled to take back the goods subject to retention of title without this being equivalent to a withdrawal from the contract. For this purpose we are irrevocably entitled to enter the customer’s business premises during normal business hours.
6. Delivery, fulfilment, risk assumption
Unless expressly agreed otherwise, all deliveries of the contractor shall be EXW [wine cellar (…), Austria] Incoterms 2010. The goods shall be made available in wine cartons of 6 bottles each. From an order quantity of 66 bottles, the goods shall be kept ready for collection on exchangeable EPAL quality-tested EURO pallets (maximum 660 bottles per pallet) and handed over to the customer via pallet accounts to be reconciled. The ordered goods are stored in the contractor’s cylinder warehouse at about 16°C before collection by the customer. In order to maintain any warranty claims with regard to the quality of the wine, the customer must demonstrably ensure that the goods are transported at a temperature of no less than 12°C and no more than 18°C and that the cooling chain is maintained. Fixed delivery and performance deadlines are – if a binding nature of the deadlines has not been expressly agreed in writing – non-binding and may be exceeded by the contractor by up to 10 working days. Only after expiry of this period may the customer withdraw from the contract after setting a reasonable grace period of at least 14 days with regard to the outstanding (partial) delivery. If, in the case of an EXW delivery, the contractor undertakes to send the goods to the place of destination at the customer’s request, the risk shall pass to the customer upon notification of readiness for shipment.
7. Warranty, duty of inspection and notification of defects
The condition of the goods at the time of transfer of risk is decisive. The customer must inspect the goods immediately upon receipt and submit any complaints immediately, but in any case within 10 days after delivery of the goods in writing and with detailed information on the alleged defect, otherwise the goods shall be deemed to have been approved. In the case of hidden defects, the notice of defects must be made within 10 days of their discovery. Any warranty claim must always be proved by the customer, who is obliged to reimburse all costs for unjustified or late notices of defects. If the customer cannot prove that the goods were transported at a temperature of no less than 12°C and no more than 18°C and that the cooling chain was maintained without interruption, any warranty with regard to the quality of the wine is excluded. Only such wines come from organic grape production, which are marked on the bottle label with the appropriate labels. Apart from any mandatory legal provisions with regard to the type of warranty provision, the contractor expressly reserves the right to fulfil any warranty claim at his own discretion by improvement, replacement or price reduction. The warranty period is 6 months and begins with the transfer of risk. In any case, the warranty obligation expires at the end of the warranty period; claims for recourse, which are derived from a claim of the client by his customer, are excluded.
The liability of the contractor is generally limited to the typically foreseeable damage and in terms of value to the value of the (partial) delivery. Excluded is – as far as legally permissible – in particular any compensation for pure financial losses, indirect damages and losses or consequential damages of any kind as well as loss of profit.
9. Force majeure
The occurrence of circumstances independent of the will of the parties, in particular all cases of force majeure, shall entitle the contractor to extend the delivery dates and deadlines in accordance with the extent and duration of these circumstances and their consequences, without granting the customer a right to withdraw from the contract or a claim for damages. However, in the event of such circumstances, the contractor shall also be entitled to cancel the order in whole or in part without the customer being able to derive any claims for compensation. Force majeur events within the meaning of this provision are in particular force majeure, earthquakes, fire, floods and all other natural events leading to failed harvests, riots, government regulations, decisions or other measures or any other event of a similar nature.
The customer is entitled to withhold his payment obligations, even in the event of justified complaints, only in respect of a reasonable partial amount. The contractor is entitled to store, transmit, revise and delete personal data of the customer in the course of business transactions.
11. Saving clause
Should any provision of these terms and conditions or of the contract be or become invalid, the remaining provisions shall remain valid. In their place, that which comes as close as possible to the economic content of this provision shall apply. This applies accordingly to any loopholes in these terms and conditions or the contract.
12. Withdrawal from the contract
If the customer, for whatever reason, does not punctually comply with any obligation arising from the purchase, the contractor is entitled to exercise the right to choose in accordance with §§ 918 ff ABGB. The contractor is thus entitled to demand the fulfilment of the contract or, after setting a grace period of 14 days, to withdraw from the contract. In the event of non-performance of the contract, a flat-rate, no-fault compensation for damages in the amount of 10% of the order sum shall be deemed agreed.
13. Applicable law and place of jurisdiction
It is agreed that Austrian national law shall apply and that Austrian national law shall always apply to the legal transactions. In the case of customers with headquarters within the European Union or an EFTA state, Vienna is agreed as the exclusive place of jurisdiction. All disputes arising out of or in connection with contracts with customers having their registered office outside the European Union or an EFTA state shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with these Rules. The place of arbitration shall be Vienna. In both cases, however, the contractor reserves the right to sue its claims also at the customer’s ordinary place of jurisdiction.
Alternative dispute resolution pursuant to Art. 14 (1) ODR-VO and § 36 VSBG:
The European Commission provides a platform for online dispute resolution (OS) which you can find at https://ec.europa.eu/consumers/odr. We are neither obliged nor prepared to participate in dispute resolution proceedings before a consumer arbitration board.