GENERAL TERMS AND CONDITIONS OF GEMELLii Drinks GmbH BUSINESS VIS-À-VIS CONSUMERS
§ 1 General; Scope of Application of the GTC
(1) The following General Terms and Conditions ("GTC") apply under exclusion of other general terms and conditions to the business relationship between the GEMELLii Drinks GmbH and the respective contractual partner acting as a consumer within the meaning of Section 13 of the German Civil Code (Bürgerliches Gesetzbuch) ("Customer"), including the contractual relationships on the basis of orders placed by the Customer in the online shop of GEMELLii Drinks GmbH.
(2) The version valid at the time of a contract being concluded shall apply.
(3) Rights to which GEMELLii Drinks GmbH is entitled pursuant to statutory provisions beyond these GTC remain unaffected.
§ 2 Conclusion of Contract; Order Process
(1) Contracts between GEMELLii Drinks GmbH and its Customers are concluded via the online shop of GEMELLii Drinks GmbH. To place orders Customers can either register as such or place a guest order.
(2) The presentation of the product range on the website of GEMELLii Drinks GmbH does not constitute a legal sales offer, but merely serves as the basis for the submission of a binding offer by the Customer (invitatio ad offerendum). By posting an order by clicking the "Buy" button, the potential Customer submits to GEMELLii Drinks GmbH a binding offer to conclude a purchase contract. If credit card is chosen as means of payment, the purchase contract is being concluded within two business days from submission of the offer by GEMELLii Drinks GmbH sending an e-mail order confirmation or dispatch notification with regard to the respective ordered item to the Customer. If the Customer has not received an e-mail order confirmation or a notification of dispatch of the respective ordered item within two business days, the Customer is no longer bound to his offer and will be reimbursed immediately for any payments already made, unless it explicitly maintains its offer. If Sofortüberweisung, PayPal, Apple Pay, Amazon Pay or Google Pay is chosen as payment method, the purchase contract is already concluded at the time of the confirmation of the payment order to the respective payment method provider by the Customer. The condition for an effective conclusion of a purchase contract is always that the order process is completed by the Customer submitting the order. Should information on the product range have been incorrect, GEMELLii Drinks GmbH will submit a counter-offer to the Customer acceptance of which the Customer can freely decide on. Should GEMELLii Drinks GmbH not accept an order, it will inform the potential Customer of this by e-mail.
§ 3 Revocation Instruction (Widerrufsbelehrung)
(1) Right of revocation
The Customer is entitled to revoke the contract concluded with GEMELLii Drinks GmbH within fourteen days without stating reasons.
(2) Exercise of the right of revocation
The right of revocation is exercised by informing GEMELLii Drinks GmbH of the decision to revoke the contract by means of an unambiguous declaration (e.g. by letter or e-mail). The right of revocation can be exercised by the Customer, for example, by using this Sample Revocation Form.
(3) Revocation period
The revocation must be exercised within fourteen days after the date on which the Customer or a third party authorised by the Customer, other than the carrier, took possession of the goods. The revocation period is being observed if the notice of revocation is sent prior to expiry of the period.
(4) Consequences of the revocation
If the contract has been revoked, GEMELLii Drinks GmbH shall reimburse to the Customer all payments, including delivery costs (with the exception of costs incurred because the Customer has not chosen the standard delivery of GEMELLii Drinks GmbH), within fourteen days from the date of receipt of the notice of revocation. The same means of payment used for the payment of the purchase price shall be used for the execution of the refund. GEMELLii Drinks GmbH is entitled to refuse the refund until it has received the goods, unless the Customer provides evidence of the return of the goods. The goods must be returned or handed over no later than fourteen days after GEMELLii Drinks GmbH has received the declaration of revocation. GEMELLii Drinks GmbH shall bear the costs of returning the goods. However, the Customer is hereby contractually obliged to bear the regular costs of returning the goods if, in the case of exercising the statutory right of revocation, the price of the goods to be returned does not exceed an amount of EUR 40.00 or if, in the case of a higher price of the goods, the Customer has not yet paid the consideration or a partial payment at the time of revocation, unless the goods delivered do not correspond to those ordered. Loss of value shall be compensated only if it is the result of a handling not necessary for the examination of the condition, characteristics and function mode of the goods. In the case of the return of goods, the Customer is asked to return them to GEMELLii Drinks GmbH in the original packaging including all accessories and with all packaging components, if possible. If the Customer is not in possession of the original packaging anymore, the goods shall necessarily be returned in a suitable packaging that sufficiently protects the goods from transport damage. However, compliance with this provision is not a prerequisite for the effective exercise of the right of revocation.
(5) Exclusion of the right of revocation
The above provisions on the right of revocation shall only apply if the relevant contract is concluded between GEMELLii Drinks GmbH and a consumer within the meaning of Section 13 of the German Civil Code. For the sake of clarification, this means that the contract was concluded by the Customer for purposes which can predominantly neither be attributed to his commercial nor his self-employed professional activity.
However, according to Section 312g para. 2 of the German Civil Code, a right of revocation does not exist in case of delivery of goods which are not prefabricated and for the manufacture of which the individual selection or instruction of the Customer is determinant or which are clearly tailored to personal needs (e.g. special labelling of the bottle).
§ 4 Prices; Shipping Costs; Return Costs
(1) The prices are inclusive of the statutory value added tax as well as the reusable deposit (Mehrwegpfand) in an amount of EUR 0.15 and apply exclusively to orders placed by Customers within Germany via the online shop of GEMELLii Drinks GmbH. The prices valid at the time of the order and shown in the online shop apply.
(2) The shipping costs to be borne by the Customer are based on the respectively current information in the online shop of GEMELLii Drinks GmbH at the time of the order.
(3) The obligation to assume possible return costs in the event of a consumer revocation is governed by section 3 para. 4.
§ 5 Means of Payment; Set-off and Right of Retention; Repayment; Default in Payment
(1) Payments can be made by Sofortüberweisung, credit card, PayPal, Apple Pay, Amazon Pay or Google Pay. The purchase price is due immediately upon conclusion of the purchase contract.
terms for payments without a PayPal account.
(4) If you select the payment method "Amazon Payments", the payment is processed via the payment service provider Amazon Payments Europe s.c.a., 5 Rue Plaetis, L-2338 Luxembourg, in application of the Amazon Payments Europe user agreement.
(5) The Customer is only entitled to set-off if the counterclaim is undisputed or has been finally adjudicated. The Customer is only entitled to assert a right of retention to the extent that the counterclaim is based on the same contractual relationship.
(6) To the extent that repayment of the purchase price by GEMELLii Drinks GmbH to the Customer becomes necessary, reimbursement shall be made via the original payment method.
(7) If the Customer is in default with his payment, GEMELLii Drinks GmbH shall be entitled to claim interest in an amount of 5 percentage points above the base interest rate p.a. from the point in time the default occurs. GEMELLii Drinks GmbH reserves the right to prove a higher damage.
§ 6 Delivery; Cessation of Delivery Obligation; Partial Delivery
(1) Delivery shall be effected as soon as the goods have been fully paid for.
(2) Orders and deliveries are currently only possible within Germany.
(3) Unless otherwise expressly agreed, delivery shall be made from the warehouse of GEMELLii Drinks GmbH to the delivery address specified by the Customer.
(4) The delivery time usually is five to ten business days after receipt of the order or, in case of advance payment, after receipt of payment.
(5) The obligation to deliver lapses if GEMELLii Drinks GmbH is not supplied correctly and timely and is not responsible for the lack of availability. If GEMELLii Drinks GmbH is not able to deliver the ordered goods due to a lack of availability, the Customer will be informed thereof immediately and any advance payment will be refunded. In this case GEMELLii Drinks GmbH can withdraw from the purchase contract. The statutory claims of the Customer remain unaffected by this.
(6) Partial deliveries are only permissible if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and no additional costs are incurred by the Customer thereby.
§ 7 Quality of the Goods
(1) The purchased items shall be of the agreed quality upon transfer of risk. This shall be determined exclusively on basis of the specific agreements concluded between the GEMELLii Drinks GmbH and the Customer regarding the characteristics, features and performance characteristics of the purchased items.
(2) Information on the website and in other information material by GEMELLii Drinks GmbH, including information describing the product, are not to be understood as guarantees for a special quality of the purchased items.
(3) GEMELLii Drinks GmbH reserves the right to slightly change to a customary extent the purchased items with regard to composition and ingredients of the beverage as well as the shape, material and/or design of the bottle, provided that this does not change the agreed quality. Insignificant deviations in the consistency and colour of the beverage as well as in the colour and appearance of the bottle from the agreed quality are reserved insofar as these are in the nature of the used ingredients and materials and customary.
§ 8 Transfer of Risk; Acceptance; Default in Acceptance
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon delivery (Übergabe). In the case of sales shipment (Versendungskauf), however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment.
(2) If an acceptance (Abnahme) has been agreed, it shall be decisive for the transfer of risk. Also for the rest, the statutory provisions of the law governing contracts for work and services (Werkvertragsrecht) shall also apply mutatis mutandis to an agreed acceptance. Delivery or acceptance shall be deemed to have taken place if the Customer is in default of acceptance.
(3) If the Customer is in default of acceptance, if it fails to cooperate or if the delivery is delayed for other reasons for which the Customer is responsible, GEMELLii Drinks GmbH is entitled to claim compensation from the Customer for the resulting damage including additional expenses (e.g. storage costs, costs of repeated delivery).
§ 9 Retention of Title (Eigentumsvorbehalt)
(1) Ownership of the delivered goods shall remain with GEMELLii Drinks GmbH until the purchase price has been finally and fully paid.
(2) The Customer is not entitled to consume, pledge, assign by way of security, process or restructure the goods subject to retention of title prior to the transfer of ownership.
(3) In the event of seizures or other interventions by third parties into the reserved goods, the Customer must immediately notify GEMELLii Drinks GmbH in writing so that the latter has the opportunity to file a third-party action against execution pursuant to Section 771 of the German Code of Civil Procedure (Zivilprozessordnung).
§ 10 Warranty for Material Defects; Guarantee
(1) The warranty for material defects shall be governed by the statutory provisions, in particular Sections 434 et seqq. of the German Civil Code.
(2) An additional guarantee with regard to the goods delivered by GEMELLii Drinks GmbH only exists if it is expressly granted in the order confirmation of the respective item.
§ 11 Liability
(1) Claims of the Customer against GEMELLii Drinks GmbH for damages are excluded. This does not apply to claims for damages of the Customer due to injury of life, body, health or due to the violation of essential contractual obligations (Kardinalpflichten) as well as liability for other damages due to an intentional or grossly negligent breach of duty by GEMELLii Drinks GmbH, its legal representatives or vicarious agents (Erfüllungsgehilfen). Essential contractual obligations are those, which fulfilment is necessary to achieve the objective of the contract.
(2) In case of a breach of essential contractual obligations GEMELLii Drinks GmbH shall only be liable for the foreseeable damage typical for the contract if it was caused by simple negligence, unless the Customer's damage claims are due to injury of life, body or health.
(3) The restrictions in para. 1 and 2 shall also apply in favour of the legal representatives and vicarious agents of GEMELLii Drinks GmbH if claims are asserted directly against them.
(4) The limitations of liability resulting from para. 1 and 2 shall not apply to the extent GEMELLii Drinks GmbH fraudulently concealed the defect or granted a guarantee for the quality of the item. The same applies to the extent GEMELLii Drinks GmbH and the Customer have concluded an agreement regarding the quality of the item. The provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
§ 12 Data Protection
GEMELLii Drinks GmbH takes the protection of its Customers' data very seriously. The data protection declaration of GEMELLii Drinks GmbH is available here.
§ 13 Minors
We do not offer goods for purchase by minors. If you are under 18 years of age, you may only purchase goods in the online shop of GEMELLii Drinks GmbH with the participation of a parent or other legal guardian.
§ 14 Customer Service
If you have any questions, please do not hesitate to contact our customer service at any time. It can be reached by e-mail to customerservice@GEMELLii.com or by telephone at +49 (0)6109 500 32020.
§ 15 No Alternative Dispute Resolution
The European Commission provides a platform for Online Dispute Resolution (OS), which can be found at ec.europa.eu/consumers/odr. In principle, consumers have the possibility to use this platform to settle their disputes. GEMELLii Drinks GmbH is not obliged and not willing to participate in a dispute resolution procedure before a consumer arbitration board.
§ 16 Written Form
Amendments and supplements to these GTC as well as any individual contractual deviations from these GTC must be made in writing.
§ 17 Our Identity
GEMELLii Drinks GmbH, Hinter den Obergärten 36, 60388 Frankfurt am Main.
§ 18 Applicable Law
(1) The law of the Federal Republic of Germany shall apply to contracts between GEMELLii Drinks GmbH and the Customer under exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The statutory provisions limiting the choice of law and the applicability of mandatory provisions, in particular of the state in which the Customer has its habitual residence as a consumer, shall remain unaffected.
§ 19 Severability Clause
(1) Should individual provisions of these GTC be or become legally void, the remaining provisions shall remain valid.
(2) The ineffective provisions shall be replaced by the respective statutory provisions, insofar as existent.
§ 20 Miscellaneous/Language
This English language version of the GTC of GEMELLii Drinks GmbH is just a translation of the original German language version for the convenience of the Customer. In any case of discrepancy between both versions the German language version as well as any references to German law terms shall prevail.
Here you find the Sample-revocation-form.
GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERY OF GEMELLII DRINKS GMBH – B2B
§ 1 Scope of Application
(1) The General Terms and Conditions of Business and Delivery ("GTC") of GEMELLii Drinks GmbH shall apply exclusively and also to all future business transactions between the respective contractual partner ("Customer") and GEMELLii Drinks GmbH. GEMELLii Drinks GmbH does not accept any conflicting or deviating terms and conditions of the Customer unless they are explicitly agreed to in writing.
(2) The present GTC shall also apply if GEMELLii Drinks GmbH, being aware of conflicting or deviating general terms and conditions of the Customer, carries out the delivery to the respective Customer without reservation.
(3) All agreements made between GEMELLii Drinks GmbH and the Customer for the execution of this contract are recorded in writing in this contract.
(4) The GTC of GEMELLii Drinks GmbH shall apply vis-à-vis entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch). Entrepreneur within the meaning of these GTC is any Customer acting in the exercise of its commercial or self-employed professional activity when concluding the contract.
§ 2 Conclusion of Contract; Establishment of the Business Relationship
(1) The product presentations on the website and in brochures are at all times non-binding. By placing an order, the Customer submits to GEMELLii Drinks GmbH a binding offer to purchase the relevant product.
(2) GEMELLii Drinks GmbH is entitled to accept the offer within a period of two (2) weeks. The contract is being effectively concluded upon receipt of the declaration of acceptance (Annahmeerklärung). The dispatch of the ordered goods and the confirmation of the dispatch to the Customer are equivalent to an explicit declaration of acceptance by GEMELLii Drinks GmbH; this does not apply if "advance payment" has been agreed as method of payment. In respective cases, GEMELLii Drinks GmbH already declares acceptance by confirming the order and requesting payment by email. If the Customer already triggers a payment to GEMELLii Drinks GmbH in the course of the ordering process, the offer of the Customer is being bindingly accepted upon approval of the payment process.
(3) The minimum order quantity is one (1) pallet.
(4) After the order has been placed GEMELLii Drinks GmbH will send the Customer a confirmation, the invoice and these GTC by email. However, above that GEMELLii Drinks GmbH does not store any separate contract text that would be accessible to the Customer over the internet.
(5) Individual agreements made in individual cases with the Customer (including collateral agreements, supplements and amendments) shall in any case prevail over these GTC. Subject to proof to the contrary, with regard to the content of respective agreements a written contract or written confirmation by GEMELLii Drinks GmbH shall be decisive.
(6) Legally relevant declarations and notifications of the Customer with regard to the contract with GEMELLii Drinks GmbH (e.g. setting of a deadline, notification of defects, rescission or reduction) must be made in writing, i.e. in written or text form (e.g. by letter, email, fax). Legal formal requirements and further evidence, in particular in case of doubt regarding the legitimacy of the declarant, remain unaffected.
§ 3 Transfer of Risk
(1) The risk of accidental loss or accidental deterioration of the goods transfers to the Customer upon handover of the goods.
(2) If the Customer wishes the goods to be delivered, the risk of accidental loss or accidental deterioration of the goods transfers to the Customer upon handover to the assigned transport company. This also applies in case GEMELLii Drinks GmbH has assumed the transport costs. If the Customer has not given instructions to the contrary, the choice of packaging, transfer route and means of dispatch is incumbent upon GEMELLii Drinks GmbH, without being responsible for having chosen the fastest and/or cheapest option.
(3) In case of damage or loss of the goods during transport, the Customer must immediately arrange for the carrier to record the facts.
(4) In the event of default in acceptance or other breaches of obligations to cooperate by of the Customer, the risk of accidental loss or accidental deterioration shall transfer to the Customer upon occurrence of the default in acceptance or other breaches of obligations to cooperate.
§ 4 Acceptance; Delivery; Delivery Times
(1) The Customer is obliged to accept the goods. In cases of default in acceptance or other culpable violation of obligations to cooperate by the Customer, GEMELLI Drinks GmbH is entitled to compensation of the damage resulting therefrom. The costs for deliveries which acceptance is refused or for deliveries not collected contrary to respective agreement are being charged to the Customer.
(2) Unless otherwise agreed, delivery exclusively takes place within the Federal Republic of Germany. Delivery to Customers outside the Federal Republic of Germany is only possible on individual request and after prior inspection.
(3) The goods are dispatched to the business address of the Customer or to another delivery address specified by him. The delivery may only be accepted by the Customer personally or by a person named by the Customer or being authorized to represent the Customer.
(4) Unless otherwise agreed, GEMELLii Drinks GmbH shall deliver ordered goods, provided that the goods are in stock regularly, (i) in case of deliveries to the Federal Republic of Germany within 15 business days after receipt of the order, (ii) in case of deliveries to other European countries within 25 business days after receipt of the order and (iii) in case of deliveries to a country outside the EU within three (3) months after receipt of the order. If there is a change in the expected delivery date after the order or if the goods are not available, GEMELLii Drinks GmbH will promptly inform the Customer hereof by email. In the latter case, any consideration already received will be refunded.
(5) Information on delivery times is non-binding unless the delivery date has been bindingly confirmed. In case of orders via telephone, confirmations regarding deliveries and delivery dates are only binding if not revoked within the next business day or within 48 hours.
(6) If advance payment has been agreed, the beginning of the delivery period requires receipt of the purchase price payment by GEMELLii Drinks GmbH.
(7) GEMELLii Drinks GmbH generally delivers an order consisting of several goods uniformly. In case of partial delivery at specific request of the Customer, the delivery costs pursuant to section 5 para. 1 below apply for each individual partial delivery.
(8) If GEMELLii Drinks GmbH is responsible for exceeding a reasonable delivery period, it shall only be in delay if the Customer has set a reasonable grace period in writing which has expired unsuccessfully.
(9) Labour disputes, partial or total failure of means of production, delays in its supply, transport obstructions or other events of force majeure entitle GEMELLii Drinks GmbH to delay delivery by the duration of the obstruction or delay plus a reasonable start-up period. This also applies to seasonal excess demand.
(10) GEMELLii Drinks GmbH reserves its correct and timely self-delivery as well as the plea of non-performance of the contract.
§ 5 Delivery; Delivery Costs; Pallets
(1) Delivery within the Federal Republic of Germany as well as to the Austrian Republic and the Italian Republic is free for the Customer, unless otherwise individually agreed.
(2) Delivery is effected by a shipping provider or forwarding agency. If the ordered goods are delivered by a forwarding agent, the delivery takes place up to the curb. Further transport services may be agreed with the carrier; additional costs incurred thereby shall be paid by the Customer directly to the carrier.
(3) The pallets used for shipping the goods will be charged by GEMELLii Drinks GmbH to the Customer in the amount of the costs incurred by itself. Respective costs will be credited by GEMELLii Drinks GmbH to the Customer upon return (i) within the scope of following deliveries or (ii) at the expense of the Customer directly to an address priorly determined by GEMELLii Drinks GmbH pro-rata per previously delivered pallets in good condition.
§ 6 Warranty
(1) GEMELLii Drinks GmbH guarantees that its products are manufactured in accordance with the statutory provisions and that the quality of its goods is impeccable. Complaints regarding the quantities or prices stated on the delivery notes and/or invoices – also in case of delivery of pallets – must be made upon receipt of the goods, but within two (2) business days at the latest. In case of a delayed complaint, the Customer loses the right to subsequent delivery or credit note.
(2) The Customer is obliged to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch). This includes, but is not limited to, the examination of defects with regard to the quantity and quality of delivered and returned containers (full and empty containers) and means of transportation (beverage components; other deposit containers), including the time until the expiration date of the delivered goods is reached guaranteed by GEMELLii Drinks GmbH. If the Customer omits the notification, the goods are deemed to have been approved, unless the defect was not apparent during the inspection.
(3) All defects are to be reported to GEMELLii Drinks GmbH immediately in writing, i.e. within two (2) business days. In order to meet the deadline it is sufficient to send the notification in due time.
(4) Warranty claims may be asserted up to twelve (12) months after transfer of risk. The statutory limitation periods for recourse claims (Section 445a of the German Civil Code) remain unaffected by this.
(5) If the goods are defective, the Customer is entitled to subsequent performance in the form of elimination of the defect or delivery of a defect-free item. In the event of failure of subsequent performance, the Customer is entitled to reduce the purchase price or rescind the contract.
(6) The Customer is obliged to check balance confirmations, empties balances and other statements for correctness and completeness. Complaints regarding these confirmations, balances or invoices must be made immediately, at the latest within five (5) business days after receipt of statement. Thereafter respective complaints are excluded.
§ 7 Quality Assurance
To ensure that the final consumer receives impeccable GEMELLii products, the Customer is obligated to ensure storage and transport under appropriate conditions, in particular cool, dry, odourless and dark. Moreover, the Customer must ensure that the expiration dates are taken into account in a legally compliant and appropriate manner. Goods, which have already reached its expiration date, must not be resold or otherwise placed on the market by the Customer.
§ 8 Liability
(1) Claims for damages due to breach of duty and tort as well as claims for compensation of futile expenditures and other pecuniary losses are excluded against GEMELLii Drinks GmbH as well as its agents in performance and vicarious agents.
(2) This limitation of liability does not apply if the damage has been caused intentionally or grossly negligent, as well as in case of breach of material contractual duties. Furthermore, it shall not apply to damages resulting from culpable injury to life, body or health or to damages caused due to absence of a guaranteed characteristic or for which liability is stipulated pursuant to the Product Liability Act (Produkthaftungsgesetz).
(3) In case of a slightly negligent breach of material contractual duties, liability is limited to the foreseeable, typically occurring damage.
§ 9 Rescission
(1) Rescission by the Customer due to an omitted service or a service not provided in accordance with the contract requires that GEMELLii Drinks GmbH is responsible for the breach of duty.
(2) This does not apply if something else has been specially otherwise agreed (e.g. fixed date transaction). Furthermore, this shall not apply in case of a defect in the purchased good; in this case the statutory provisions of the German sales law apply unless otherwise stipulated.
§ 10 Prices; Terms of Payment
(1) Delivery is made at the list prices valid for the Customer on the day of delivery, unless deviating sales prices are agreed separately. The prices are quoted ex works, plus the respective statutory value added tax, unless expressly otherwise agreed. Reasonable price changes come into effect upon notification to the Customer. When updated price lists come into effect, all other lists and any other price agreement become void. The prices are absolute net prices; they do not include value added tax, any applicable customs duties or other taxes.
(2) Unless otherwise agreed, the purchase price is due for payment immediately upon receipt of the invoice and the goods by the Customer; and the Customer pays the purchase price within 30 days after receipt of the invoice and the goods net or in case of payment within 14 days after receipt of the invoice and the goods with a 2% discount. GEMELLii Drinks GmbH reserves the right to carry out a credit assessment of the Customer and declares respective reservation when confirming the order at the latest.
§ 11 Default in Payment; Set-off; Right of Retention
(1) The Customer gets in default of payment after 30 days subsequent to receipt of the goods and receipt of the invoice, if not otherwise agreed. Default in acceptance by the Customer shall be deemed equivalent to receipt of the goods.
(2) As from the due date default interest will be charged at a rate of 9% above the respective base interest rate p.a. GEMELLii Drinks GmbH reserves the right to assert further claims for damages caused by default. This is not excluded by maturity of the default interest.
(3) The Customer shall be entitled to set-off and retention with similar claims only on the basis of those claims which are undisputed or have been legally determined. For dissimilar claims a right of retention is limited to claims of the Customer from the same contractual relationship.
§ 12 Retention of Title
(1) The respective goods remain the property of GEMELLii Drinks GmbH until all claims having arisen at the time of conclusion of the contract, including all claims from follow-up contracts and repeat orders, have been fulfilled.
(2) The Customer is obligated to treat the goods with care (also see section 7 of these GTC in this regard) and to insure them appropriately, if applicable.
(3) The Customer is entitled to resell the reserved goods in the ordinary course of business, unless he is in default of payment or has suspended payment. In case of resale, the Customer assigns to GEMELLii Drinks GmbH already in advance in full by way of security all claims arising from such resale, regardless of whether it takes place before or after any processing, mixing or other utilization or use of the goods delivered under retention of title. As long as and insofar as the Customer fulfills its payment obligations, no application for the opening of insolvency or similar proceedings has been filed and payments have not been ceased, GEMELLii Drinks GmbH undertakes not to collect the respective claims. GEMELLii Drinks GmbH must be informed immediately as soon as the goods are encumbered with rights of third parties or exposed to other intervention rights of third parties.
(4) GEMELLii Drinks GmbH is obligated to release the existing securities at the Customer's request insofar as their value exceeds the total claim by more than 20%. The selection of the securities to be released is at the discretion of GEMELLii Drinks GmbH.
§ 13 Empties; Deposit
(1) The empties intended for reuse (e.g.: returnable bottles and returnable boxes) are after escrow of a deposit amount only provided to the Customer for intended use and shall be returned to GEMELLii Drinks GmbH or to a third party designated by it within the customary turnaround times in good condition. They remain inalienable property of GEMELLii Drinks GmbH or the producing bottler. Additional inscriptions in any case require the express consent of GEMELLii Drinks GmbH.
(2) GEMELLii Drinks GmbH is entitled to charge a deposit for returnable empties in the customary amount and to be charged according to the respective valid price rates of GEMELLii Drinks GmbH. At each delivery on behalf of GEMELLii Drinks GmbH, an exchange of returnable empties is made. In this context a further deposit amount must be paid only for those delivered empties which exceed the returned empties in relation to the deposit amount. For empties returned in the proper manner a corresponding deposit credit note is issued to the extent the credit has not already been settled in connection with an exchange of empties. Empties will only be taken back and credited to the extent they have been delivered by GEMELLii Drinks GmbH or its vicarious agents.
(3) Empties that are not returned will be charged at the reasonable discretion of GEMELLii Drinks GmbH, but at least in an amount of 50% of the new replacement price ("deduction new for old"), with offsetting any outstanding deposit, if any. The same applies as far as there is a negative empties return balance when the business relationship is terminated.
(4) GEMELLii Drinks GmbH is only obligated to take back boxes with the respectively intended and delivered bottles (so-called "sorted returnable empties").
§ 14 Transport; Cargo Securing
(1) If the Customer picks up the goods himself, it is obligated to ensure that all legal road traffic and transport safety requirements, in particular with regard to cargo securing, are complied with. If it is supported in this by staff or affiliated companies of GEMELLii Drinks GmbH, it shall indemnify these companies and its staff insofar from any damages and third-party claims.
(2) Furthermore, the Customer undertakes to indemnify GEMELLii Drinks GmbH from any damages caused by the Customer breaching its aforementioned obligation.
§ 15 Data Protection; Confidentiality
(1) In accordance with the data protection declaration attached as Exhibit, the Customer is informed that GEMELLii Drinks GmbH collects, stores, processes all data from the business relationship and may use it anonymized and/or pseudonymized for its own marketing towards third parties and may insofar pass it on to affiliated third companies and third parties used for the performance of the contract, in particular transport companies. The Customer agrees to this. The preceding consent also includes the transfer of data to industry-specific credit agencies in the course of the payment processing. The consent may be revoked at any time.
(2) The Customer will treat all business transactions that come to its knowledge strictly confidential. It is expressly prohibited for the Customer to use the name or company name "GEMELLii" or "GEMELLii Drinks GmbH" in any way for advertising, in particular to include them in reference lists or otherwise name them. Sentence 2 shall not apply insofar as GEMELLii Drinks GmbH has granted its prior written consent to the Customer for the specific individual case.
§ 16 Use of the Internet Portal
(1) By links on its internet pages GEMELLii Drinks GmbH refers to other pages on the internet. GEMELLii Drinks GmbH has no influence whatsoever on the design and content of the linked pages and expressly accepts no liability for this.
(2) The contents of the GEMELLii Drinks GmbH website are intended solely for the Customer's own information requirements with regard to the business relationship with GEMELLii Drinks GmbH and the purchase of its goods. Any use of the contents beyond that or linking to the contents for commercial purposes is not permitted. This particularly applies to watermarks and other marks of GEMELLii Drinks GmbH for images, product descriptions, product data and other product information. The Customer acknowledges the aforementioned restrictions on the use of the contents.
§ 17 Final Provisions
(1) Deviations from these GTC must be made in writing.
(2) The contract is exclusively governed by the laws of the Federal Republic of Germany. The application of the UN sales law is expressly excluded.
(3) Place of performance is the company seat of GEMELLii Drinks GmbH.
(4) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Frankfurt am Main, Federal Republic of Germany.
(5) This English language version of the GTC of GEMELLii Drinks GmbH is just a translation of the original German language version for the convenience of the Customer. In any case of discrepancy between both versions the German language version as well as any references to German law terms shall prevail.
§ 18 Severability Clause
Should one or more provisions of these GTC be or become ineffective or should a loophole exist, the contract between GEMELLii Drinks GmbH and the Customer as well as the remaining terms and conditions remain effective. Instead of the invalid provision such valid provision shall be deemed to have been agreed that comes closest to the meaning and purpose of the invalid provision.
Version as of: 04/2020