General Terms and Conditions — TENCITY Energiehandel GmbH

Definitions

TENCITY Energiehandel GmbH is referred to as “we”, “us”, “seller” or “TENCITY”.
Prospective and existing customers are referred to as “you”, “buyer” or “customer” independent of existence of an agreement between us and the customer.
Together, TENCITY and the customer are referred to as “parties”.

Scope

Our deliveries, services, and offers are provided exclusively on the basis of these terms and conditions. These terms and conditions apply to all future business relationships, even if they are not expressly agreed upon again.
Deviations from these terms and conditions are only effective if they are confirmed by us in writing, including email.

Conclusion of Contract

Unless indicated otherwise, our offers are non-binding and do not affect subsequent orders.
Contractual obligations between TENCITY and the customer are legally binding from the moment of written or electronic confirmation, including e-mail, sent by a person duly representing TENCITY. The same applies to additions, amendments or supplementary agreements.
E-mail recapitulation of the main terms means conclusion of the deal and creates a legally binding obligation between the parties.
Upon conclusion of the deal, all previous communications between us and the buyer are considered null and void.
All samples, specimens, and analytical data provide only non-binding indications of the average quality of the goods, unless specific characteristics are guaranteed in writing.

Price and taxes

The prices stated in the order confirmation are binding.
EBV is for buyers account, if product is exported from Germany buyer to claim refund of EBV fee directly with EBV.
If delivery is to be made with preferential customs and/or tax treatment, the customs authority's authorization or exemption certificate (in accordance with EU and national legislation) corresponding to the intended use must be submitted to us in good time before delivery. If the customs authority's authorization or exemption certificate is not granted or is subsequently revoked, we will deliver the goods considering the customs duties and tax rates applicable on the day of delivery.
The buyer is aware and acknowledges that, due to deliveries under duty suspension, energy tax is not charged according to the German and European statutory provisions only if for every delivery of energy products respective EADs (Electronic Administrative Documents) are properly electronically created, completed and officially electronically validated within EMCS.
The buyer of the energy must arrange for the clearance of the concerned EAD and must ensure that the receiver of the excised goods in the meaning of article 5 EAD is declaring and issuing in a timely manner the report of receipt for electronically validation in EMCS by the competent customs authorities of the buyer’s country.
The buyer shall indemnify TENCITY for all other damage in connection with the breach of an obligation arising from deliveries under duty suspension regime, including but not limited to the case when the EAD information provided above becomes invalid or incorrect in any way. In case of the buyer’s breach of an obligation in respect of energy tax, TENCITY shall further have the right to cease deliveries to the buyer immediately and charge energy tax retroactively. TENCITY's further rights of retention shall remain unaffected.

Delivery

The Buyer is obliged to accept delivery of the contractually agreed quantities within the reference period. If these quantities are not collected on time, the Seller shall have the right to terminate or suspend the contract in whole or in part.
The Seller shall further have the right to demand fulfilment of the Buyer's obligation to collect the quantities, applying the price that would have applied if the Buyer had collected the goods on time.
Our ability to fulfil our delivery obligations is contingent upon the buyer's timely and proper fulfilment of its obligations.
We reserve the right to choose the supplying refinery or storage installation unless agreed in writing otherwise.
The determination of the quantity for invoicing shall be carried out for all goods at the supplying refinery or storage. This determination is binding for the buyer and shall form the basis for invoicing. Alternatively, for products subject to energy tax, the accompanying administrative document may be used as the basis for invoicing.
Insurance will only be provided at the customer's express request and at the customer's expense.
The place of delivery shall be agreed in writing. Risk and title as per INCOTERMS 2020 unless agreed otherwise.
We are entitled to make partial deliveries unless agreed otherwise in writing.

Delivery obstacles, force majeure

Neither party shall be liable to the other for failure to perform any of its obligations under this contract (except in relation to obligations to make payments due under this contract) to the extent that performance of any of its obligations is hindered, delayed or prevented due to any force majeure event (as defined below).
The time for performance of the affected obligation shall be extended in accordance with the period of hindrance, delay or prevention so caused. However, should force majeure event(s) continue uninterrupted for a period of thirty (30) consecutive calendar days (regardless of whether one or several different force majeure events occurred for shorter periods provided there was at least one operating force majeure event each day), and such force majeure event(s) hinder, delay or prevent performance of either party's obligations under this contract, either party shall have the right to terminate this contract with immediate effect by written notice to the other party, in which case neither party shall be responsible for further performance, nor liable in any way to each other, save to the extent of any breaches or any accrued obligations to make payment arising prior to the hindrance, delay or prevention.
"Force Majeure event" shall include, but not be limited to: act of God, fire, explosion, war, military operations affecting the flow of goods, acts of terrorism, acts of public enemy, blockade, revolution, embargoes, trade prohibition, prohibition on export of the product from one EU country to another EU country, any restriction on movement of goods or capital, unplanned shutdown of the seller's intended source of supply, requests or orders or action by any government or governmental or civil or military authority, strike, lockout, lightning, flood, civil commotion, epidemic, pandemic or any other causes whatsoever that are beyond the reasonable control of the party claiming a force majeure event.
If a Force Majeure event affects a party’s ability, in whole or in part, to carry out its obligations under this contract, it must promptly give written notice to that effect to the other party stating in reasonable detail (i) the circumstances underlying such Force Majeure event, (ii) the affected obligation(s) under this agreement and (iii) the estimated time to remedy such Force Majeure event, if known. Failure to provide such written notice to the other party will prevent a party relying on this clause and the Force Majeure event. The time for performance of the affected obligation shall be extended in accordance with the period of hindrance, delay or prevention so caused.

Warranty and Liability

TENCITY gives no guarantees, conditions, warranties, representations or other terms whether express or implied (whether by statute or otherwise) with respect to quality, satisfactory quality, merchantability, suitability or fitness for any purpose whatsoever of the product which extend beyond the description of the product and any specifications set out in this contract.
The parties shall not be liable, whether in contract, tort or otherwise, for any indirect, punitive, consequential or special losses, damages or expenses of any kind directly or indirectly arising out of or in any way connected with the performance of the deal concluded between the parties. The seller shall in no circumstances be liable for more than the difference between the deal price and the market price, based on the nearest available market, at the date of any breach of the contract and will not be liable for any loss of profit, wasted overheads or loss resulting from the shut-down or reduction in throughput of refinery or process plant.
Commercially acceptable and technically unavoidable variations in the quality and appearance of the goods do not constitute grounds for a complaint.

Securities

Should it become apparent that the Buyer's ability to pay jeopardises fulfilment of the Seller's claims against the Buyer, we are entitled at any time, even after conclusion of the contract, to demand sufficient security to secure our claims, including those not yet due, and to request further advance payments on our part dependent on such security.
If the adequate security is not available in time, we are entitled to refuse delivery and/or to cancel deliveries and/or the entire remaining quantity of the contract and/or to terminate existing contracts without notice. Any claims to damages on the part of the Seller remain unaffected by the exercise of the right of retention and/or withdrawal.

Payments

Payment obligations are considered fulfilled by the buyer only after the receipt of the funds on the seller’s account in full. All charges at seller’s bank are for seller’s account and all charges at buyer’s bank and correspondent bank are for buyer’s account.
If the payment due date falls on a Saturday or a Frankfurt banking holiday other than a Monday, the payment has to be effected on the preceding Frankfurt banking day. If the payment due date falls on a Sunday or a Monday Frankfurt banking holiday, the payment has be effected on the following Frankfurt banking day.
In case of a delay in payment, the buyer undertakes to pay interest for each day of the delay at the Euro interbank offered rate (one month Euribor rate) plus 9% per annum.
Any expenses incurred by the seller, including but not limited to reasonable legal fees, court costs and collection agency fees, caused by a delayed or non-payment by the buyer of the amount(s) due, shall be for the buyer’s account, and payable upon demand with supporting documentation.

Retention of Title Security

We retain title to the goods until all our claims have been paid in full. Ownership of the goods shall not pass to the buyer until all our claims have been paid in full.

Applicable law, place of performance, place of jurisdiction

All legal relations between us and the buyer shall be governed exclusively by the laws of Austria, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof. The UN convention on contracts for the international sale of goods shall not apply.
Any dispute arising out of or in connection with any contract with TENCITY, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the Vienna international arbitration centre (VIAC). The seat, or legal place of arbitration, shall be Vienna, Austria. The language to be used in the arbitration shall be English.
Seller warrants that it enters into any agreement with us in a commercial capacity and that it is, in all respects relevant to the agreement, subject to civil and commercial law.
The place of performance for the delivery of the goods is the dispatch point/delivery point. The place of performance for payments and other services is our registered office.

Data Protection

TENCITY Energiehandel GmbH processes the data of customers, their contact persons, and their employees exclusively on the basis of the General Data Protection Regulation (GDPR) and Austrian data protection law.

Miscellaneous

Should individual provisions be wholly or partially invalid, the remaining provisions of these terms and conditions shall remain in full force and effect. The parties hereby agree that the invalid provision shall be replaced by a valid provision that is acceptable to both parties and most closely approximates the legal and economic purpose intended by the invalid provision.
All terms and conditions agreed or discussed between the parties shall remain strictly private and confidential (with the exception of the ability of the seller to disclose such confidential information to its affiliate, insurance broker/company, financing bank, auditors and professional advisors). Neither party shall be bound by the foregoing confidentiality obligation in cases where the other party has consented to disclosure, disclosure is required by any applicable law or relevant government authority or the information is obtained or available from any other source (other than as a result of the breach of this contract).
Without the prior written consent of the other party, neither party may assign any of its rights or obligations under the contract in full or in part.