General Terms and Conditions of Sale

Thomas Henry GmbH

§ 1 Validity

(1) These terms and conditions of sale can also be viewed on and apply exclusively. We will not accept differing or contrary terms unless we have expressly agreed to them in writing.

(2) These terms and conditions of sale shall also apply to all future transactions between the parties and if we perform delivery of goods despite our knowledge of differing or contrary terms.

(3) These general terms and conditions of sale shall only apply to entrepreneurs, legal persons under public law or special funds under public law within the meaning of § 310, para. 1 of the German Civil Code (BGB).

§ 2 Offer, acceptance

Insofar as the order constitutes an offer within the meaning of § 145 BGB, we are entitled to accept the offer within two weeks. Our offers in our brochures, on our website or elsewhere are non-binding, unless expressly labelled as binding. By placing an order, the customer makes a binding offer to purchase the relevant products.

§ 3 Prices, payment

(1) Delivery shall be made at the respective daily/list prices or agreed sales prices that are valid on the date of delivery for the relevant customer group. Prices are ex-works, exclusive of the respective statutory VAT and exclusive of costs for packaging, unless expressly agreed otherwise. Price changes take effect upon notification of the buyer. All price lists and any other price agreements become null and void as soon as the latest price list comes into effect. The prices are absolute net prices. In particular, they do not include VAT, any customs duties or other taxes.

(2) The purchase price is, if not agreed otherwise, payable immediately, net, as of the date of the invoice. From the due date, default interest of 8% above the respective base interest rate p.a. shall accrue. We reserve the right to claim further damages for delay.

§ 4 Offset, retention

The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is undisputed or established in a legally binding judgement. The purchaser is only entitled to claim rights of retention on the basis of counterclaims from the same contractual relationship.

§ 5 Delivery

(1) Delivery requires timely and proper performance of all duties of the purchaser. We reserve the right to object on the basis of non-performance of the contract.

(2) In case of default in acceptance or other culpable breach of duties to cooperate on the part of the purchaser, we are entitled to claim any resulting damage, including, but not limited to, any additional expenses. We reserve the right to make further claims. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default in acceptance or breach of duty to cooperate.

(3) However, labour disputes, partial or total supply shortages, supply delivery delays, transportation hindrances or other events of force majeure entitle Thomas Henry to postpone delivery for the duration of the hindrance or delay, plus a reasonable lead time. The same applies to seasonal excess demand.

(4) We reserve the right to correct and timely delivery to us by our suppliers. In the case of non-availability of the service or goods, we will inform the purchaser without delay. Any consideration will be repaid without delay. If the customer picks up merchandise or other goods, it is their duty to load these on suitable vehicles safe for transport, even if employees of Thomas Henry or its affiliated companies provide assistance. The customer thus releases these companies and their employees from any and all damages and claims asserted by third parties.

§ 6 Transfer of risk, shipment

If the purchaser requests shipment of the goods, the risk of accidental loss or damage to the goods passes to the purchaser upon dispatch.

§ 7 Retention of title

1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser, including default in payment, we are entitled to retake possession of the goods.

(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.

(3) Insofar as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third parties or other third-party claims.

(4) The purchaser may resell goods subject to the above retention of title only in the course of regular business. In this case, however, the purchaser hereby assigns to us all claims arising from such resale, whether this takes place before or after any processing of the delivered goods subject to retention of title. Our right to claim direct payment notwithstanding, the purchaser shall remain entitled to receive the payment on the assigned claims. To this end, we undertake to not demand payment on the assigned claims so long as and to the extent that the purchaser complies with all their payment obligations and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.

(5) Insofar as the above securities exceed the secured claims by more than 10%, we are obliged, upon our election, to release such securities upon the purchaser’s request.

§ 8 Quality/warranty

Thomas Henry delivers beverages in perfect quality, which are produced in accordance with applicable laws. Any complaints concerning the amounts or prices indicated on the delivery notes and/or invoices – including for deliveries of pallets – are to be submitted upon receipt of goods, at the latest within ten days. Any delay in submitting the complaint will result in the customer losing the right to subsequent delivery or credit.

(1) The purchaser’s full compliance with all requirements regarding inspection and objection established by § 377 of the German Commercial Code (HGB) is a further precondition for any warranty claim by the purchaser. Upon delivery, the purchaser shall immediately and carefully inspect the goods with regard to defects in terms of the quantity and quality of the supplied and returned packaging (full and empty packaging) and means of transport (beverage components; other returnable containers), and the types and varieties, including the remaining time period up to the best-before date of the supplied goods as guaranteed by us. A corresponding notification of defects must be submitted without delay, otherwise the goods are considered to have been accepted in this regard. Other defects must be claimed in writing within three business days after delivery; latent defects that were not noticeable during the proper inspection for defects are excluded from this. A notification of the latter must be submitted within three business days of such defects being noticed. Timely dispatch of the notification shall suffice for compliance with the deadline. All other notifications of defects are excluded.

(2) Warranty claims can be made within 12 months of the transfer of risk.

(3) In the case of goods defects, the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of non-defective goods. If such alternative performance fails, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.

(4) The purchaser shall verify the accuracy and completeness of balance confirmations, empties balances and other invoice statements. Any objections to these confirmations, balances or invoice statements must be made without delay; such objections are excluded one month after receipt of the invoice statement. The items are then considered to have been accepted.

§ 9 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance, we are liable according to the provisions of applicable law; the same applies in case of infringement of fundamental contractual obligations. To the extent that there is no intentional infringement of contract, our liability for damages shall be limited to the typically predictable damage.

(2) Our liability for culpable damage to life, body or health, as well as our liability under the German Product Liability Act, shall remain unaffected.

(3) Any liability not expressly provided for above is excluded.

§ 10 Empties

The empty containers intended for reuse (e.g. cases, deposit bottles, kegs, CO2 cylinders, pallets, etc.) are only left to the customer for their intended use and are to be returned to Thomas Henry or a third party it designates without delay. They remain the inalienable property of Thomas Henry or the producing bottler. Additional labelling always requires the express consent of Thomas Henry. Thomas Henry is entitled to bill deposits at market rates. Empty containers and pallets must be returned in the same kind and quality and in perfect condition. A corresponding deposit credit will be issued for properly returned empties. Empties not returned will be billed at the reasonable discretion of Thomas Henry, but with at least 50% of the replacement cost for a new empty (‘deduction new for old’) after deduction of the deposit. The same applies if there is a negative empties balance when the business relationship ends. This notwithstanding, Thomas Henry is only obliged to accept the cases and pallets with their intended bottles and cases that were delivered in each case (known as sorted reusable empties).

§ 11 Applicable law, jurisdiction, data protection

(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the United Nations Convention on Contracts for the International Sale of Goods).

(2) The place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Berlin.

(3) We hereby inform the purchaser, pursuant to § 4a, para. 1(2) of the German Federal Data Protection Act (BDSG) and § 4, para. 1 of the German Telecommunications Data Protection Act (TDDSG), and the purchaser hereby consents, that we may collect, store and process all their data from the business relationship and use our own anonymised and/or pseudonymised marketing with third parties, and thus disclose such data to affiliated third-party companies and to third parties employed for the performance of the contract, especially shipping companies. The purchaser’s aforementioned consent also includes the disclosure of data to industry-specific credit agencies as part of payment processes. This consent can be revoked at any time.

(Last updated 9/2014)

Bessemerstraße 22 | 12103 Berlin

Tel.: +49 (0)30 757 657 950 | Fax: +49 (0)30 3988 6804 | Registered at Charlottenburg District Court,HRB 224228 B

VAT identification no.: DE338860428

Directors: Sigrid Bachert, Wilhelm Plumpe