Standard Business Conditions - Tetra Europe

Tetra's general terms and conditions of sale and supply

§1 Introduction & scope of application
§2 Offer and completion of contracts

§3 Payment Terms
§4 Delivery periods and dates, non-availability of service
§5 Shipping, passing of risk
§6 Notification of defects
§7 Liability for defects
§8 Other liability, limitation of liability
§9 Limitation period
§10 Reservation of title
§11 Place of jurisdiction, place of performance and other provisions

§ 1 Introduction & scope of application

Our deliveries, services and offers are provided exclusively on the basis of the following general terms and conditions of sale and supply. These terms and conditions shall also apply to all future business dealings with the buyer, even in the event that these are not expressly agreed on each occasion.
Any conditions set by the buyer that conflict with or deviate from our terms shall not be recognised by us, unless we have formally agreed to them. Our terms and conditions shall also apply in cases when we unreservedly carry out delivery of goods to the buyer with full knowledge that the buyer's terms conflict with ours or deviate from our general terms and conditions of sales and supply.
Verbal ancillary agreements do not exist.
Our terms and conditions of sale and supply shall only apply to companies, legal entities governed by public law or special funds under public law within the meaning of § 14 and § 310 of the German Code of Civil Law (BGB).

§ 2 Offer and completion of contracts

All our offers are made without obligation.
The minimum order value is 250 euro net plus VAT.
Any orders submitted by the buyer shall constitute a binding contractual offer. Unless otherwise specified in the order, we are entitled to accept this contractual offer within two calendar weeks of receiving said order. Acceptance of this may be declared either in writing or by delivering the goods to the buyer.

§ 3 Payment Terms

Our prices are not inclusive of VAT applicable at the time of delivery, nor of any additional or added charges (such as customs duties), delivery and shipping costs, or insurance. The following payment terms shall apply:

a 3% discount shall be applied for payments made by means of spot cash, direct debit or cash on delivery;

a 2% discount shall be applied for payments received within 10 days of the invoice date;

net cash will be charged for payments received within 30 days of the invoice date
Discounts shall only be approved if any outstanding invoices have been settled by the time at which the payment is made. The buyer will be in default no later than 30 days after payment is due and the invoice has been received, without the need for a reminder to be served.

Should the delivery period agreed between us and the buyer amount to more than four months, our list prices relevant on the day of delivery shall be applied.
Should the buyer default, interest will be charged at a rate of 8% above the prevailing basic interest rate (§ 247 of the BGB), provided that we cannot provide evidence of any further damages incurred. We reserve the opportunity to provide evidence of a greater or lesser extent of damage.
Deliveries to other EU countries outside of Germany will not be subject to VAT, provided that the buyer notifies us of their VAT identification number and conforms to rules on value added taxes in their own country.
We can refuse our services if, on completion of the contract, it becomes apparent that our right to receive payment may be at risk due to the buyer's inability to fulfil their obligations. Our right to refuse services shall not apply in the event that payment is received or collateral is provided. In these circumstances, we can set an appropriate deadline by which the buyer must either make a payment or provide collateral in exchange for services rendered by us. Should the buyer fail to meet these obligations by the end of this grace period, we reserve the right to withdraw from the contract.
The buyer is only entitled to set-off rights in the event that their claims are determined without further legal discourse, ready for final judgement or uncontested.

§ 4 Delivery periods and dates, non-availability of service

Delivery times will be agreed on an individual basis. We rely on receiving correct and timely deliveries from our own suppliers. In the event that we are unable to meet legally binding delivery dates due to non-availability of services, we will inform the buyer of this at once and immediately reimburse them for any payment already made. In this sense, non-availability of service is specifically due to a lack of timely delivery from our suppliers where we have concluded a congruent hedging transaction with them. Our statutory rights to withdraw from or cancel contracts, as well as the statutory provisions on terminating contracts by eliminating the obligation to perform (e.g. through impossibility or unreasonableness of service or supplementary performance) shall remain unaffected. The buyer's statutory rights to withdraw from or cancel the contract shall also remain unaffected.
Disruptions to deliveries and services due to acts of God and circumstances that are beyond our control (e.g. unforeseeable disruption to operations, restrictions on supply of raw materials required for product manufacture, lack of freight space, strikes, lockouts, official sanctions, provided that we are not responsible for the relevant circumstance in individual cases), release us from our delivery obligations for the duration of the disruption and provide justification for delivery dates to be revised accordingly, even if the circumstance in question originated with our suppliers. Should this obstruction last for more than six weeks, the buyer may withdraw from the elements of the contract that have not yet been fulfilled, once an appropriate grace period has lapsed.

§ 5 Shipping, passing of risk

Deliveries are made free of freight ex works, which is also the place of performance. At the buyer's request goods can be dispatched to a different destination (mail order, § 447 of the BGB). Unless otherwise agreed, we are entitled to decide on the method of dispatch (particularly with regard to the choice of transport company, dispatch route and packaging used).
The risk of accidental loss and deterioration of the goods, as well as the risk of delayed delivery, is transferred at the time at which the goods are dispatched to the forwarding agent, freight carrier, or to the individual or corporation tasked with carrying out the shipment.
When our goods are delivered on euro pallets, these pallets are only provided to the buyer on a loan basis. The buyer must return the euro pallets in the same quality and condition in which they were received with their next delivery and within the space of one month. Failing this, a charge of 11 euro plus VAT will be added to the buyer's invoice for each pallet.

§ 6 Notification of defects

If the buyer is a trader in accordance with the German Commercial Code, he should examine the goods as soon as they are delivered, as far as this is feasible according to normal business procedures and, if they are faulty, notify of us this in writing without delay. Should the buyer fail to inform us in writing, we shall assume that the goods have been accepted and approved, unless the fault is one that was not visible during inspection. Should such a defect present itself later on, the buyer should write to us as soon as the fault is discovered, otherwise the goods will be considered to be accepted and approved in respect of this defect as well. Timely written notification of defects will suffice to preserve the buyer's rights. The aforementioned rule cannot be invoked if the defect has been fraudulently concealed.
Notification of defects does not entitle the buyer to withhold invoiced amounts, unless the counterclaim on which the right to refuse performance is based is uncontested, established by law or ready for final judgement.

§ 7 Liability for defects

Unless otherwise stipulated below, the statutory regulations shall apply for the buyer's rights in terms of material or title defects, including wrong and short deliveries.
Our liability for defects is based first and foremost on reaching an agreement regarding the quality of the goods. Should there not be an agreement on this, the goods must be assessed according to the statutory regulations to establish whether they are faulty or not.
If the buyer is a trader in accordance with the German Commercial Code, the buyer's rights to make a claim for defects are based on the assumption that he has complied with his duty to examine the goods and notify the distributor according to § 6 of these general terms and conditions of sale and supply.
We assume no liability for losses attributed to any of the following reasons or reasons beyond our control, such as inappropriate or improper use, incorrect installation by the buyer or a third party, natural wear and tear and general deterioration, incorrect or careless handling, inappropriate storage, particularly with reference to a lack of precautions to avoid changes made by weather or temperature, storage of goods at temperatures above 25 degrees Celsius or - for liquid products - at temperatures under 1 degree Celsius, storage in areas with a humidity of more than 80%, exposure to direct sunlight, application and circulation of goods after the expiry date when we have delivered goods with sufficiently long use-by dates, excessive operational demands, unsuitable operating facilities, influence of chemical, electrochemical or electrical forces, inappropriate subsequent modifications or adaptations of the goods carried out by the buyer or a third party without our prior approval.
Should a faulty product be delivered, we can start by deciding whether to grant supplementary performance by removing the fault (rectification of defects) or by delivering a product that is free from defects (replacement delivery). Our right to refuse the buyer's chosen method of supplementary performance under the statutory requirements shall remain unaffected.
We are entitled to stipulate that any supplementary performance shall be conditional upon the buyer paying the purchase price that is due. The buyer is, however, entitled to retain a proportion of the purchase price commensurate with the fault in question.
The buyer should allow us both sufficient time and the opportunity required to render supplementary performance, in particular by surrendering the rejected goods for testing purposes. In cases of replacement delivery, the buyer should return the faulty product to us in accordance with the statutory provisions.
As a basic principle, we will absorb any expenses required to carry out assessments and supplementary performance, particularly with regard to costs associated with transport, road tolls, labour and materials. However, should the buyer's request for the rectification of a defect be proved to be unjustified, although they were aware or may have been aware that no fault existed, the buyer must reimburse us for any costs incurred.
Should the supplementary performance fail or the appropriate deadline for this set by the buyer expire without a successful conclusion or not be required by the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, negligible defects do not entitle the buyer to withdraw from the contract.
The buyer's rights to claim damage compensation or compensation for wasted expenses exist only in accordance with § 8 and are otherwise excluded.

§ 8 Other liability, limitation of liability

We are liable without reservation only for acts of deliberate malice and gross negligence (also for those of our legal representatives and agents) - as well as for damages due to loss of life, bodily injury or damage to health that are attributable to careless neglect of duty on our part or deliberate or careless neglect of duty on the part of our legal representatives and agents. We shall also be liable without restriction when offering guarantees and assurances, in the event that we are rendered liable by a defect covered by these guarantees and assurances. There are also no limitations with regard to liability for strict liability offences, particularly in reference to the German Product Liability Act. Any liability as per the principles of the trader's right of recourse in accordance with §§ 478 of the BGB shall remain unaffected.
In case of any other culpable breach of fundamental contractual obligations (cardinal obligations; cf. 7 below), our remaining liability shall be limited to the contract-typical, foreseeable damages.
All other forms of liability are excluded, irrespective of the legal basis, (specifically claims due to the breach of primary or secondary contractual obligations, illicit action and other tortious liability).
The same (exclusions, limitations and exceptions thereof) shall apply for claims resulting from culpa in contrahendo (fault in conclusion of a contract).
This § 8 shall apply accordingly in cases of compensation for expenses incurred (with the exception of those in accordance with §§ 439 Sec. 2, 635 Sec. 2 of the BGB).
Any exclusion or limitation of our liability shall also apply to the personal liability of our legal representatives, employees and other agents.
Cardinal obligations are fundamental obligations and thus those that characterise the contract and on which the contractual partner can rely. These obligations set the preconditions for fulfilment of contracts and are essential in achieving the purpose of the contract.
The statutory or case law distribution of the burden of proof shall not be changed by any of the preceding clauses.

§ 9 Limitation period

Contrary to § 438 Paragraph 1 Number 3 of the BGB, the general period of limitation for claims regarding product and title defects is one year from delivery.
If, however, the goods have been used for construction works in line with their common method of application and the use of these goods has caused damage thereto, the period of limitation is five years from delivery. Special provisions regarding claims for restitution of property of third parties (§438 Paragraph 1 Number 1 of the BGB), for cases of fraud (§ 438 Paragraph 3 of the BGB) and for claims of suppliers' recourse on final delivery to the end user (§ 479 of the BGB) shall also remain unaffected.
The aforementioned limitation periods of sales law shall also apply to contractual and non-contractual claims for damage compensation by the buyer that are made on the basis of faulty goods, unless applying the standard legal limitation period (§§ 195, 199 of the BGB) would lead to a shorter period of limitation in individual cases. The periods of limitation according to the German Product Liability Act shall in any case remain unaffected. In all other respects, the statutory periods of limitation shall apply to the buyer's claims for damage compensation mentioned in § 8.
The statutory or case law distribution of the burden of proof shall not be changed by any of the preceding clauses.

§ 10 Reservation of title

The delivered goods shall remain our property until the point at which all present and future requirements of the current business relationship have been fulfilled. This shall also apply to cases in which receivables are part of an ongoing balance.
The buyer is entitled to resell and reuse the goods as part of the ordinary course of business. The reservation of title extends to the full value of the products resulting from the processing, mixing or combination with our delivered goods, whereupon we shall be deemed to be the manufacturer. In the event that third parties retain their ownership rights in respect of cases of processing, mixing or combination of their goods, we will thus be granted joint ownership of the invoiced values of these processed, mixed or combined goods. In all other respects, the same applies to the newly created products as to the goods delivered subject to reservation of title. For reasons of security, the buyer hereby assigns to us in full, or to the amount of our joint ownership proportion in cases where third parties have retained ownership rights, all claims arising from the resale of goods or those resulting from other legal justifications (e.g. insurance, illicit action). We hereby accept this assignment. The buyer's obligations mentioned in section 4 below shall also apply with regard to the assigned claims.
We authorise the buyer, subject to revocation, to collect the assigned claims in his own name. Provided that the buyer meets his payment obligations, we shall not exercise our right to collect. At our request, the buyer shall disclose the assignment and provide us with the information and surrender to us the documentation required to enforce the claims.
The right to resell our goods shall cease as soon as the buyer falls into financial difficulty, especially in cases where payments have been suspended, an application for insolvency proceedings has been submitted or a court order has been raised against the buyer. Pledging the goods as collateral or assigning these by way of security prior to payment being received in full for the secured claim (section 1) is strictly prohibited. In the event that the buyer's creditors become involved, and particularly in cases of seizure of goods, the buyer must notify us of this fact immediately and ensure that our property is identified as such.
For the duration of the reservation of title, the contract goods should be insured at the buyer's own expense against fire and water damage, operational failure, explosion, theft, etc. The buyer shall assign to us the rights resulting from the insurance contract to the amount of the goods delivered on fulfilment of the supply contract. We hereby accept this assignment. We should be informed at once of any claims made.
Should the buyer not meet his obligations to pay the relevant purchase price, we are entitled to withdraw from the contract, in accordance with the legal provisions, and request that the goods are returned to us on the grounds of reservation of title and cancellation of the contract. We can only enforce these rights if we have previously allowed the buyer an appropriate period of time to pay and no payment has been received, or if the statutory provisions do not require such a deadline to be set.
Should the value of the collaterals exceed our claims by more than 20%, we shall release these to the buyer at our discretion.

§ 11 Place of jurisdiction, place of performance and other provisions

These general terms and conditions of sale and supply and all legal relationships between ourselves and the buyer are governed by the laws of the Federal Republic of Germany, excluding all international and supranational (contractual) legal systems, in particular the United Nations Convention on Contracts for the International Sale of Goods. Provisions and effects of the reservation of title according to § 10 shall, however, be subject to the law of the respective location of the object in question, in so far as the application of German law is either inadmissible or ineffective.
The exclusive, as well as international, place of jurisdiction for all disputes arising either directly or indirectly from the contractual relationship is in Osnabrück, Germany, in as far as the buyer is a trader in accordance with the German Commercial Code, a legal entity governed by public law or a special fund under public law. However, we are also entitled to file a claim at the buyer's place of general jurisdiction.
Unless otherwise agreed, the place of performance for all deliveries and services is the Tetra site in Melle, Germany.
Should any of these general terms and conditions of sale and supply either wholly or partially violate mandatory law or be null or void due to other reasons, the validity of the remaining provisions shall be left unaffected.

Created: August 2011

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