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General terms and conditions of business SHATLER’s Getränke GmbH

Gastronomical establishments, retail and trade

The General Terms and Conditions of Business below apply solely in the relationship to businesses. (Section 14 of the German Civil Code)

§ 1 General

(1) These General Terms and Conditions of Business only govern the contractual relationship between SHATLER´s Getränke GmbH (hereinafter SHATLER´s) and companies who sign the contract in the course of their commercial and independent activity (Section 14 of the German Civil Code (BGB), legal entities governed by public law or special funds under public law.

(2) SHATLER’s only supplies goods and services in accordance with the following terms and conditions of business. The General Terms and Conditions of Business for consumers apply to consumers (http://www.shatlers.de/agb/).

(3) SHATLER’s is entitled to amend the general terms and conditions of business. The amendments are deemed approved if the customer does not contradict them in text form within a month after the notification of the amendment, which is also to be given in text form.

§ 2 Applicability

(1) The conditions listed in the following apply in the version applicable at the time the order is placed for all goods and services to be supplied by SHATLER’s to the customers named in § 1 (1).

(2) Any conditions of the customer that differ from these conditions shall not be recognised, unless SHATLER’s has previously agreed to their applicability previously in writing. If SHATLER’s makes deliveries to the customer without reservation, despite SHATLER’s knowing of the latter’s terms and conditions of business, this does not constitute any approval of contrary or deviating conditions of the customer. The following terms and conditions of business also apply exclusively in this case.

(3) If the customer rejects SHATLER’s terms and conditions of business, in full or in part, SHATLER’s is entitled to withdraw from the contract, without this conferring any right to compensation to the customer in the event of a withdrawal declared in this way.

§ 3 Offer and conclusion of contract

(1) SHATLER’s range of goods is without commitment and represents an invitation for SHATLER’s to make an offer in the form of an order. If the receipt of the order is confirmed by SHATLER’s, this does not yet constitute any acceptance of the customer’s offer. The acceptance of the offer leading to an order being concluded may only be made by transacting an order or by means of an explicit statement of acceptance in writing.

(2) The customer grants SHATLER’s a period of 14 days from the point an order is received, within which the offer may be accepted. The withdrawal of the order is only effective once this period has expired, provided the customer has not received any confirmation of acceptance up to this point.

§ 4 Delivery, delay in acceptance

(1) Deliveries are made ex works/warehouse in Germany, unless explicitly agreed to the contrary in writing. In this case, dispatch will be done at the customer’s risk and on his account.

(2) SHATLER’s obligation to supply is subject to it receiving the correct supplies promptly (subject to the seller obtaining raw materials promptly).

(3) SHATLER’s is entitled to provide the contractual service in partial deliveries if this can be reasonably expected of the customer and if no other agreement has been explicitly made. If a call-off delivery is agreed, the customer must call off the deliveries within an appropriate time, but at the latest within four weeks of conclusion of the contract.

(4) Delivery times are extended appropriately if the delivery is prevented or hindered by force majeure (e.g. mobilisation, war, unrest or similar events, e.g. strike, lock-out), insofar as the force majeure is not the fault of SHATLER’s. If unforeseen weather conditions make the timely delivery difficult, the delivery times will also be extended accordingly. Both parties are entitled to withdraw from the contract, in the event of a delay of more than 4 weeks due to force majeure or weather conditions.

(5) If the delivery cannot be implemented, due to force majeure pursuant to the previous paragraph and this is not the fault of SHATLER’s, or due to measures by the authorities, extreme weather conditions or similar circumstances, or are made difficult to an extent that is no longer reasonable, SHATLER’s will be exempted from the obligation to deliver for the duration of the hindrance and is entitled to withdraw from the contract. This also applies if a pre-supplier is unable for the aforementioned reasons or other reasons to supply SHATLER’s with the products required for manufacture. SHATLER’s is obligated to notify the hindrance to the customer immediately if it is not already known or must be known to the customer.

(6) Both claims for compensation by the customer because of a delay in supplies and claims for compensation in lieu of delivery are excluded in all cases of a delayed delivery, even if a deadline set for delivery by SHATLER’s has expired. This does not apply if SHATLER’s is guilty of wilful intent or gross negligence, and not in the cases involving mandatory liability by SHATLER’s due to death, injury or impaired health.

§ 5 Transfer of risk

The risk of accidental loss or accidental deterioration is transferred to the customer as soon as the goods have been handed over by SHATLER’s to the person or forwarding agent designated to collect or carry out the delivery. This also applies to any deliveries made in SHATLER’s own vehicles or on a carriage and packaging paid basis in accordance with special agreements. If the customer is in default of acceptance of the goods, handover is nonetheless deemed to have been made; this is the case when the customer does not accept the delivery offered to him/her pursuant to the contract.

§ 6 Prices

(1) The prices stated by SHATLER’s are net prices and are valid ex works/warehouse plus statutory VAT.

(2) If no special regulation has been made, the agreed prices for export do not include any costs of disposal. If take-back and utilisation obligations arise pursuant to the Packaging Ordinance (VerpackV) in the version valid when the contract is concluded, these will be assumed entirely by the buyer. The buyer will indemnify SHATLER’s against all encumbrances and costs that could arise if it does not meet these obligations, or does not meet them in full.

§ 7 Terms and conditions of payment

(1) SHATLER’s only supplies goods on the basis of payment in advance. If payment terms are granted in individual cases, the purchase price shall become due immediately notwithstanding the payment terms agreed with the customer, if the customer is in arrears with other payment obligations towards SHATLER’s, or if other circumstances for which the customer is responsible occur, and which make the realisation of the receivable appear at risk. In the case of payment after the due date, SHATLER’s is entitled to charge arrears interest amounting to eight percentage points above the respectively valid basic rate of interest (Section 288 par. II of the German Civil Code (BGB)). SHATLER’s reserves the right to file further claims.

(2) Cheques will be accepted by SHATLER’s only for fulfilment purposes. Bills of exchange will be accepted only after conclusion of special agreements and also only for fulfilment purposes and also only if they are discountable. They may not exceed a term of 90 days. Discounts and other costs will be charged to the party presenting the bill of exchange.

(3) Employees and representatives of SHATLER’s are entitled to receive payments only on presentation of a power-of-attorney for collection issued by the company management.

§ 8 Retention of title

(1) SHATLER’s reserves retention of title to the goods delivered until the fulfilment of all claims towards the customer arising from the business relationship. Any goods supplied to which SHATLER’s is entitled to ownership or co-ownership are designated as goods with a reservation of title.

(2) If SHATLER’s acquires any securities on the basis of the following regulations, SHATLER’s shall release securities at its discretion at the customer’s request, if and insofar as the value of the securities exceeds all secured claims against the customer by more than 10%.

(3) While the retention of title exists, the buyer is prohibited from pledging the goods subject to retention of title or providing them to third parties as security. The customer is obligated to handle the goods subject to retention carefully and to insure them at their new value against fire and water damage and loss due to theft at the customer’s own costs.

(4) In the event of pledging or other intervention by third parties, the customer must inform SHATLER’s immediately in writing. If SHATLER’s files legal action pursuant to Section 771 of the Code of Civil Procedure (ZPO) against the third party to preserve its own rights, the customer, along with the third party, is liable to SHATLER’s for reimbursement of the costs of the judicial and extrajudicial proceedings.

(5) While the retention of title exists, resale is permitted only to resellers in the usual course of business and only under condition that the customer (= reseller) receives payment from its customer or makes the reservation that title is not transferred to the buyer until the latter has met its payment obligations in full.

(6) If the customer sells on goods with a reservation of title, it herewith assigns to SHATLER’s any purchase price arising from the resale from its buyers, together with all ancillary rights by way of security without any special declarations being subsequently required. SHATLER’s already declares its acceptance of the assignment.

(7) If the goods subject to retention of title are sold with other items, without an individual price being agreed for the goods subject to retention of title, the customer will assign to SHATLER’s with priority (before the remaining receivable) the part of the overall price receivable that corresponds to the price of the goods subject to retention invoiced by SHATLER’s. SHATLER’s also herewith declares acceptance of the assignment.

(8) If SHATLER’s ownership should lapse as a result of processing, commingling or mixing, it is herewith agreed that the customer’s co-ownership to the new, standard item shall pass to SHATLER’s within the scope of the invoice value of the goods with a reservation of title. SHATLER’s accepts these assignments. The customer retains the new standard item for SHATLER’s free of charge. Co-ownership to this item is considered as an item with reservation of title in the above sense.

(9) The customer is also entitled even after assignment to collect this debt in its name and on SHATLER’s account up to the point of withdrawal.  SHATLER’s will not revoke the right and not collect the debt directly, as long as the customer behaves in accordance with the contract, and in particular, discloses the proceeds collected and pays these out to SHATLER’s. SHATLER’s will disclose the assignment in the external relationship and collect the receivable itself as soon as the customer falls into arrears with payment, or payments are stopped, or it is apparent that the customer is no longer or will no longer be in a position to make payments.

(10) On request, the customer is obligated to procure for SHATLER’s all documents or information in its possession that are conducive or useful for enforcing the receivable assigned to SHATLER’s.

(11) If the customer breaches its obligations (payment obligations, duties of care, obligations of disclosure, etc.), SHATLER’s is entitled, following the unsuccessful expiry of a suitable deadline, to take back the goods subject to retention of title and to withdraw from the contract. If there is no obligation to set a deadline, SHATLER’s is entitled to this right even without a limit being set. The taking back and/or filing of the retention of title or the pledging of the goods subject to retention of title by SHATLER’s does not constitute a withdrawal from the contract unless SHATLER’s declares this in writing.

§ 9 Exclusion of assignment and ban on offsetting

(1) All rights that the customer has obtained from the deeds of sale and from their implementation vis-à-vis SHATLER’s can be transferred to third parties only if SHATLER’s has agreed to the transfer beforehand in writing.

(2) The customer is entitled to offset only if its counter-claims have been legally established, are undisputed or have been recognised by SHATLER’s. It has a right of retention only to the extent that its counter claim is based on the same contractual relationship and is legally established, undisputed or recognised by SHATLER’s.

§ 10 Duty of examination and investigation

(1) Any complaints due to material defects or complaints due to wrong quantities must be communicated to SHATLER’s within eight days of receipt of the delivery of goods. The defects are to be noted to SHATLER’s in writing and the defects ascertained described. For the rest, the provisions of Section 377 of the German Commercial Code (HGB) apply.

(2) In the event that, in deviation from these terms and conditions of business, a delivery has been agreed at the risk of SHATLER’s, the customer must produce, where possible with the collaboration of the forwarding agent, a written establishment of claim before accepting discernibly damaged consignments and in the cases in which transport damage is discernible after acceptance. The customer is then obligated to hand over this establishment of damage to SHATLER’s, along with all declarations and original documents (freight bill, etc.) necessary to make this claim.

§ 11 Withdrawal

In the event of conduct by the customer that is in breach of contract, in particular in the event of payment in arrears, SHATLER’s is entitled to withdraw from the contract and to request surrender of the goods if the customer has not yet provided the service in return, or not in full. SHATLER’s is also entitled to withdraw, if the customer has provided false information about its credit rating, or if it is apparent that the customer will no longer be in a position to make the payments.

§12 Material defects, time limitation of claims for defects

(1) Claims of the customer due to a material defect become time-barred in one year, calculated from the transfer of risk. This reduction in the limitation period lapses in the case of damage arising from death, injury or impaired health, also in the case of damage that is based on a wilful or grossly negligent breach of duty attributable to SHATLER’s. It also lapses in cases in which SHATLER’s is liable pursuant to the product liability law.

(2) In the event of defects with the goods supplied SHATLER’s chooses to make a reasonable price reduction, free-of-charge supplementary performance or replacement delivery. In the event of failures in the subsequent fulfilment or defects in the substitute delivery, the customer can at its discretion request a reduction or withdraw from the contract.

(3) Claims of the customer due to a material defect are excluded. This does not apply in the case of malicious concealment of the defect, in the case of non-compliance with a guarantee of quality, in the case of death, injury or impaired health or liberty and in the case of a wilful or grossly negligent breach of duty by SHATLER’s.

(4) Further claims against SHATLER’s or its vicarious agents are excluded unless otherwise stipulated in “§ 13 Liability limitation and liability exclusions”.

§ 13 Liability restriction and liability exclusions

(1) Compensation claims of the customer, irrespective of the legal grounds for these, in particular due to breach of obligations arising from the debt relationship and from unlawful activity, are excluded.

(2) This does not apply if mandatory liability exists, e.g. pursuant to the product liability act, in cases of wilful intent, gross negligence, due to death, injury or impaired health or due to the breach of fundamental contractual obligations (cardinal obligations). The compensation claim for the breach of fundamental contractual obligations, however, is restricted to the predictable damage typical of this type of contract unless wilful intent or gross negligence exists or liability exists due to death, injury or impaired health.

(3) If the damage is covered by an insurance taken out by the customer for the respective claim (except for fixed-sum insurance), SHATLER’s is liable only for any disadvantages for the customer associated with this (e.g. increased insurance premiums due to the claim; interest damage for interim financing, etc.) The same applies for damage that has been caused by a defect in the goods delivered.

(4) Irrespective of blame, any liability on SHATLER’s part remains unaffected by this limitation of liability, should a defect be maliciously concealed and in accordance with product liability law.

(5) If the liability of SHATLER’s is restricted or excluded, this applies also to the personal liability of the staff, employees, workers, statutory representatives and vicarious agents of SHATLER’s. In addition, the personal liability of the said persons is excluded for any damage caused by them due to slight negligence unless it has resulted in death, injury or impaired health.

§ 14 Data protection

(1) SHATLER’s is entitled to process the customer data received in connection with the business relationship, irrespective of whether they originate from the customer itself or from a third party, for its own purposes pursuant to the Federal Data Protection Act (BDSG).

(2) Compensation claims based on the handling of such data, with the exception of liability pursuant to “Section 13 Liability limitation and liability exclusions”, are excluded.

(3) Personal data will be collected by SHATLER’s itself and processed in compliance with the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG).

§ 15 Protection of minors

(1) SHATLER’s rejects any contractual relationships with minors. The customer undertakes to ensure that the delivery is received only by people who have reached the age of majority and shall indemnify SHATLER’s against any claims by third parties that result from the breach of this obligation.

(2) The age of majority is reached at 18; the law of the country in which the customer has its registered office also applies.

§ 16 Closing conditions

(1) The sole place of jurisdiction for disputes arising from the contractual relationships regulated by these terms and conditions of business is Hamburg. SHATLER’s, however, remains entitled to file legal action against the customer at its general place of jurisdiction.

(2) German substantive law applies to all legal relationships between SHATLER’s and the customer. The Uniform Law on the International Purchase of Movable Items dated 17.07.1973 (Federal Law Gazette 1973 Part I p. 856) and the Uniform Law on the Conclusion of International Deeds of Sale regarding Movable Items dated 17.07.1973 (Federal Law Gazette) 1973 Part I p. 868) and the Law dated 05.07.1989 on the UN Convention on Contracts for the International Sale of Goods dated 11.04.1980 (Federal Law Gazette BGBl. 1989 Part II p. 586) do not apply. In addition, the Incoterms in their respectively valid version apply.

(3) If a provision of these General Terms and Conditions of Business should be void or invalid, the validity of the remaining provisions shall remain hereby unaffected.

Version dated 1st of May 2014