AGB

General Terms and Conditions of Egger Getränke GmbH & Co OG

FN 183954 x, Tiroler Str. 20, 3105 St. Pölten - Austria

Date: April 2024

1. Scope of application
   1. For all legal transactions between Egger Getränke GmbH & Co OG (hereinafter referred to as "Egger Getränke") and its business customers (hereinafter referred to as "customer"), the following General Terms and Conditions of Sale and Delivery ("GTC") shall apply exclusively, unless and to the extent otherwise expressly agreed in writing. If these GTC are exceptionally applied to legal transactions with consumers, they shall only apply to the extent that mandatory legal provisions for consumers do not conflict with the provisions of the GTC.
   2. If the customer refers to its own general terms and conditions, their validity is heshallreby objected to and Egger Getränke is not obliged by them, to the extent that they deviate from these GTC to the disadvantage of Egger Getränke. The GTC of Egger Getränke shall also apply if Egger Getränke executes deliveries without reservation despite being aware of deviating conditions of customers.
   3. Changes to these GTC shall be communicated to the customer in writing. They shall be deemed approved if the customer does not object in writing. Egger Getränke will point out this consequence to the customer in particular when notifying the changes. The customer must send the objection to Egger Getränke within four weeks after notification of the changes.

2. Offer and conclusion of contract
   1. The offers of Egger Getränke are subject to change, unless otherwise agreed/confirmed between Egger Getränke and the customer. Verbal offers or verbal commitments by Egger Getränke are only effective if they are subsequently confirmed by Egger Getränke in writing.
   2. Customer orders are binding for the customer from the time of receipt by Egger Getränke. Egger Getränke can accept within a period of two weeks (commitment period) (i) by means of a written order confirmation or (ii) by starting to perform the service. Silence on the part of Egger Getränke shall not be deemed as consent beyond that.
   3. Egger Getränke reserves the right, at its own discretion, to accept or execute orders from the customer only partially in the case the service can be divided; in this case, a contract is concluded only to the extent of the part of the service accepted by Egger Getränke, without the customer being entitled to any claims arising therefrom.
   4. Egger Getränke reserves the right to change its products at any time (e.g. recipe, flavour, packaging, etc.). Unless individual characteristics of Egger Getränke have been expressly assured, this also applies to changes that are reasonable to the customer after the conclusion of the contract; such deviations do not constitute a defect or deficiency of the product.

3. Shipping and transfer of risk
   1. The comprehensive delivery obligation of Egger Getränke, including delivery dates and the owed quality of the goods in terms of type and quantity, results solely from the agreements of the contracting parties. The customer is not entitled to any claims for damages, warranty or other claims due to the exceeding of announced delivery dates, unless a fixed transaction has been agreed expressly and in writing in individual cases. Operational and traffic disruptions and improper delivery by sub-suppliers are considered force majeure and shall exempt Egger Getränke from the delivery obligation for the duration of the hindrance, without the customer being entitled to any claims arising therefrom.
   2. Egger Getränke reserves the right to make partial deliveries to a reasonable extent, which may also be invoiced separately.
   3. The transport risk shall pass to the customer as soon as the goods have been loaded onto the customer's vehicle. If Egger Getränke arranges the transport of the goods, the transport risk shall pass to the customer as soon as the goods reach the customer's warehouse or sales outlet. If Egger Getränke undertakes the unloading of the goods, the transport risk shall pass to the customer as soon as the goods arrive at the respective storage room.
   4. The loading and unloading of Egger Getränke's delivery vehicle must be carried out immediately upon arrival of the means of transport at the customer's site.
   5. In the case of sales ex works, Egger Getränke places the goods on the vehicle of the collector exclusively according to the instructions of the transport personnel and is responsible for supervising the entire loading process. Egger Getränke, its employees, and commissioned third parties are not considered loaders within the meaning of § 101 para 1a KFG. Safe loading for transport and operation according to the current state of load securing technology is carried out by the collector, who employs appropriately trained transport personnel. The collector also provides the necessary load securing means. Egger Getränke does not control the load securing measures carried out by the collector or their agents. Egger Getränke is not liable for damages resulting from insufficient load securing.
   6. If the customer is in default with the call-off, acceptance, or collection of the goods, or responsible for a delay, Egger Getränke is entitled to withdraw from the contract to the amount of the quantity concerned. In addition, in the event of a delay in acceptance, Egger Getränke is entitled to charge an adequate amount of additional expenses (e.g., frustrated transport costs and storage costs).
   7. The customer is obligated to ensure proper storage and transportation of the goods and to resell them taking into account the best before dates.
   8. As long as there is no other legal obligation, packaging will only be taken back by express agreement.

4. Prices, payment terms, collaterals, payment default, offsetting
   1. All price quotations are ex works exclusive of all taxes, duties, customs and any additional costs, license fees for dual systems and deposit. Discount information in percent always refers to list prices exclusive of all taxes, duties, customs, any deposit and any additional costs. Discounts, refunds or rebates, of whatever kind, do not entitle the customer to claim these discounts/refunds/rebates in the future.
   2. Egger Getränke reserves the right to change the prices for its products. Egger Getränke is also entitled to charge the customer for any increases in production costs as well as increased or newly introduced fees and charges after the contract has been concluded.
   3. Price changes will become effective within 30 days of notification to the customer. If the increase is more than 5% of the agreed price, the customer has a right to terminate the contract (right of cancellation or withdrawal).
   4. The invoice amount for the deliveries is due for payment immediately upon receipt of the invoice without deduction. The payment must be received by Egger Getränke by irrevocable credit to Egger Getränke's bank account within 3 banking days, free of charges and deductions.
   5. In the event that the customer has authorised Egger Getränke to collect receivables by way of direct debit or has instructed their account-holding bank to do so by direct debit or through direct debit authorisation in favour of Egger Getränke, the customer shall ensure sufficient coverage of their account.
   6. If the customer does not make any payments, they will be in default of their payment obligation by a reminder from Egger Getränke, which was declared after the due date of the receivable. Even without a reminder, the customer will be in default of the payment obligation 14 calendar days after receipt of an invoice. Irrespective of this, the payment default occurs if the customer does not make payments at a separately agreed point of time.
   7. If the customer is in default of payment, Egger Getränke is entitled, without prejudice to further claims, to demand default interest in the amount of 8% above the base rate p.a. without proof. If Egger Getränke can prove a higher default damage, it is entitled to demand it. The settlement of lower default interest - in particular as a courtesy to the customer - does not constitute a waiver of the right of settlement of the above-mentioned default interest.
   8. If the customer is in default of payment or if Egger Getränke becomes aware of circumstances that are likely to significantly reduce the customer's creditworthiness (in particular suspension of payments, insolvency), Egger Getränke is entitled to withhold outstanding deliveries or to execute them only against advance payments or securities. Furthermore, Egger Getränke can demand that the customer returns the goods that have not yet been paid to Egger Getränke at their own expense without delay.
   9. If partial or instalment payments have been agreed with the customer, there is default on payments if the customer does not pay even part of an instalment on time, so that all receivables including the aforementioned default interest shall become immediately due and payable. In the case of an agreement on partial or instalment payments, the customer declares that they irrevocably waive the objection of the limitation period of the claims.
   10. The customer can only offset receivables that have been legally established or expressly acknowledged in writing by Egger Getränke against the receivables of Egger Getränke. The customer is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship. This also applies to refunds, rebates, advertising subsidies, etc. granted to the customer by Egger Getränke.

5. Retention of title
   1. Until the final payment of all receivables arising from and still arising from the business relationship, the delivered goods remain the property of Egger Getränke (“reserved goods”). In the case of several receivables or current invoices, the retention of title is considered a security for the balance claim, even if individual deliveries of goods have already been paid.
   2. The customer is entitled to sell the reserved goods within the framework of proper business operations. Pledges, transfer by way of security, leasing or other transfer of the reserved goods by the customer prior to acquiring ownership are prohibited. The customer hereby assigns to Egger Getränke in full by way of security the receivables arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods (including all balance claims from current account relationships). The customer is obliged to immediately set the publicity acts (in particular corresponding book notes) necessary for the effectiveness of the assignment.
   3. Egger Getränke authorises the customer to collect the receivables assigned to Egger Getränke in their own name on a revocable basis. This authorisation to collect expires if the customer does not properly meet their payment obligations towards Egger Getränke with regard to the reserved goods, gets into payment difficulties, enforcement measures are taken against them or judicial insolvency proceedings are opened over their assets or the opening of such proceedings is rejected due to lack of assets.
   4. In the event of third-party access to the reserved goods (in particular by seizure), the customer shall notify Egger Getränke in writing immediately. In addition, the customer is obliged to immediately point out the property right of Egger Getränke and to assert the property of Egger Getränke at their own expense and to indemnify and hold Egger Getränke harmless with regard to all costs for maintaining and defending the property.
   5. In the event of a breach of contract by the customer, Egger Getränke is entitled, after withdrawal from the contract, to demand the return of the reserved goods or, if applicable, the assignment of the customer's claims for surrender against third parties.
   6. During the duration of the retention of title, the customer must treat the reserved goods with care, keep them in proper condition and insure them at full value against all risks, including fire, and assign the insurance policies in favour of Egger Getränke.

6. Breach of contractual obligations by Egger Getränke
   1. Only properties expressly marked or promised by Egger Getränke are guaranteed properties within the meaning of § 922 para 1 ABGB (Austrian Civil Code). No warranty claims (or other claims) can be derived from product descriptions of Egger Getränke (or a third party), in particular (also) from information in catalogues, brochures, advertising material, written and / or oral statements, etc., which have not expressly become an integral part of the contract. If a product is manufactured by Egger Getränke on the basis of recipes, flavours, design specifications, drawings, models or other specifications of the customer, the liability of Egger Getränke shall only extend to the conditional execution according to the specification.
   2. Under the other conditions, warranty claims only exist for defects that are present at the time of handing over (in the case of dispatch when handed over to the first carrier). The customer has to prove that this is the case. A presumption of defectiveness within the meaning of § 924 ABGB is excluded. Likewise, the recourse according to §933b ABGB is excluded.
   3. The customer is generally not entitled to resell defective goods.
   4. Rights of the customer due to a defect basically end with the best before date (MHD), but after six months at the latest. The limitation period begins with the transfer of the transport risk to the customer. The statutory limitation rule applies to statutory claims arising from tortious liability or the Product Liability Act.
   5. Egger Getränke is responsible for the breach of a contractual obligation, provided that an essential contractual obligation has been violated due to negligence or intent by Egger Getränke, its legal representatives or its own employees or its vicarious agents. Essential contractual obligations are contractual obligations whose fulfilment is essential for the  proper execution of the contract in the first place and the violation of which jeopardises the achievement of the purpose of the contract.
   6. In the event of violation of other contractual obligations, Egger Getränke is only liable if the breach of obligation is due to gross negligence or intentional fault of Egger Getränke itself, its legal representatives, own employees or vicarious agents.
   7. The liability of Egger Getränke for slight negligence, the replacement of lost profit, consequential and property damage, unforeseeable damage, not typically occurring damage, not achieved savings, interest losses and damage from claims of third parties against the customer are excluded.
   8. These provisions do not apply to claims for compensation for personal injury resulting from injury to life, body or health, in the event of fraudulent concealment of a defect or in the event of mandatory liability under the Product Liability Act.
   9. In all cases of liability of Egger Getränke (also according to the other provisions of these GTC), the customer shall prove the fault of Egger Getränke that triggered the liability. The applicability of § 1298 clause 2 ABGB is expressly excluded.
   10. Claims for damages due to transport damage or loss can only be asserted by the customer against Egger Getränke if they have notified Egger Getränke of such damage or loss within an exclusion period of fourteen calendar days after receipt of the goods at the destination or if the goods have not been received after the intended delivery date and if the goods have been kept ready for inspection by Egger Getränke including the packaging in the event of damage (duty to inspect and give notice of defects). Failure to give timely notice of defects releases Egger Getränke from liability for consequential damage.
   11. If the customer themselves is held liable under the Product Liability Act, they hereby expressly waive any recourse against Egger Getränke within the meaning of § 12 of the Product Liability Act (PHG). If the customer places the goods delivered by Egger Getränke on the market outside the European Economic Area, they undertake to exclude the duty to compensate according to the Product Liability Act (PHG) toward their customer, if this is possible according to the applicable laws of the customer's country. In the event of failure to comply with this obligation, the customer is obliged to indemnify and hold Egger Getränke harmless with regard to all claims of third parties arising from the title of product liability.
   12. If an agreed delivery date is exceeded, the customer is entitled to set a reasonable grace period for Egger Getränke. If the delivery has not taken place within this period, the customer is entitled to withdraw from the contract. In principle, the customer is not entitled to derive claims for damages from the fact that Egger Getränke is temporarily or permanently unable to deliver, provided that and to the extent that they are not solely responsible for the reasons for this intentionally or through gross neglicence.
   13. Delivery periods and grace periods are extended in the event of force majeure, strike or lockout to a reasonable extent, if Egger Getränke is prevented from fulfilling its obligations on time without fault. The same applies to changes in the available water and other raw materials required for the production of the goods, to operational disruptions (e.g. lack of energy, general lack of empties, etc.), the lack of transport facilities, official interventions, failure to obtain official permits in good time, as well as to late, incorrect or insufficient delivery by the suppliers of Egger Getränke, if these circumstances are not the fault of Egger Getränke. Egger Getränke shall inform its customers immediately of the existence of such circumstances within the framework of purchase orders.
   14. In the event of an official or other complaint about the goods delivered by Egger Getränke, the customer is obliged to inform Egger Getränke immediately and to ensure that in case goods are withdrawn, a second sample is taken from the same batch, officially sealed and secured for Egger Getränke as a counter-sample.
   15. In the event of exports from Austria by the customer, they shall bear sole responsibility for compliance with the relevant provisions outside of Austria, in particular as regards food, labelling, consumer protection and competition law, and the customer shall completely indemnify and hold Egger Getränke harmless in this regard.

7. Confidentiality / data collection
   1. The customer shall treat all business transactions of Egger Getränke that come to their knowledge as strictly confidential.
   2. The customer is expressly prohibited from advertising with the name or company name “Egger Getränke” in any way, including them in reference lists or otherwise naming them.
   3. The customer shall comply with the relevant regulations of the applicable data protection laws and also ensure this with regard to their employees.
   4. The customer acknowledges and ensures that Egger Getränke may process all data of the customer from the business relationship within the scope of the intended purpose. This data includes e.g. addresses, ordered items and billing data. This data may also include personal data. The data concerns e.g. contact persons or contact information. As far as data that concerns third parties is also transmitted, the customer assures that there is a legal basis for the processing of this data.
   5. The above-mentioned data may be transmitted within the Egger Getränke group of companies as well as to companies of the Egger Group, to external service companies for outsourced corporate functions - such as for the purpose of invoicing, for credit checks and to debt collection companies.
   6. Questions about the collection, processing and use of personal data by Egger Getränke can be directed to .
   7. Egger Getränke shall ensure that the interests of the customer and third parties worthy of protection are not impaired.

8. Miscellaneous
   1. The place of performance for all delivery obligations of Egger Getränke and for all payment and other contractual obligations of both parties is the place of the respective branch of Egger Getränke, which is mentioned on invoices or delivery notes or in contracts.
   2. The customer's claims are not transferable. Egger Getränke is entitled to assign its rights to third parties.
   3. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be at the discretion of Egger Getränke, the competent court for the registered office of the respective branch of Egger Getränke, which is mentioned on the invoice  or, alternatively, St. Pölten.
   4. The substantive law of Austria applies, excluding all references to other legal systems and international treaties. The application of the Hague Uniform Law on the International Sale of Goods and the UN Convention on the International Sale of Goods is excluded.
   5. The customer acknowledges that they are not entitled to any rights to the trademarks registered for "Egger" as a result from the supply relationships.
   6. If any of these provisions is or becomes invalid or unenforceable in whole or in part or if a loophole becomes apparent, the validity of the remaining provisions shall not be affected thereby. The headings in these GTC are for structuring purposes only and are not to be used for their interpretation.

9. Additional provisions for the production of private labels and third-party brands

In addition to the provisions mentioned above under point 1.-8. the following applies:
 

1. 1. The production of private labels and third-party brands refers to orders in which Egger Getränke produces beverages on behalf of a trading company or a brand. This includes the development, production and packaging of beverages according to the specific requirements and specifications of the customer.
   2. The customer bears all responsibility for the marketability, content and compliance with all legal regulations in connection with the manufactured beverages. Egger acts exclusively on behalf of the customer and assumes no responsibility for the marketability, content or compliance with legal regulations of the produced beverages. Should any liability arise for Egger, the customer shall indemnify Egger from any claims and provide compensation. This applies in particular also to any arising legal fees and court costs. This provision also applies if the rights of third parties are impaired by the placing on the market of the respective product.
   3. All costs incurred in connection with the production of the beverages under the customer's private label / third-party brand are the financial responsibility of the customer. Costs that are not explicitly stipulated in the contract are the financial responsibility of the customer, unless there is a deviating written agreement.

10. Additional provisions for contract filling

In addition to the provisions mentioned above under point 1.-8. the following applies:

1. 1. Over- or underdeliveries

Due to general conditions related to procurement (empty can supplier, raw material supplier, etc.) and production, Egger Getränke reserves the right to make underdeliveries or overdeliveries of 5% of the ordered units of the finished product.

1. 2. Storage duration

The offer price includes a storage period of the finished product of a maximum of 14 calendar days from the production date. For a storage fee which is defined in the present offer or price list, Egger Getränke offers to store the finished product up to 70 calendar days from the production date. Egger Getränke reserves the right to destroy finished goods which are not picked up after 70 calendar days at the latest and settle them to the customer at the price of the offer plus destruction costs.

In addition, all storage fees which are settled by upstream suppliers to Egger Getränke for the storage of customer-specific raw materials are generally charged.

In general, EGGER Getränke reserves the right to dispose of and charge all customer-specific raw materials still in stock (both with Egger Getränke and with suppliers) or already ordered in the event of termination of the cooperation. The same also applies in the case that – despite of a generally ongoing business relationship – individual articles and the related customer-specific raw materials are not filled for more than 6 months.

Stock quantities resulting from the overdelivery of raw materials within the permissible fluctuation range are also subject to this regulation.

1. 3. The creation of the cliché and layout as well as all costs associated with it are to be settled directly between the customer and the respective supplier of raw materials named by Egger Getränke.

All technical and legal requirements of Egger Getränke regarding the layout structure in relation to the processability are mandatory. Further aspects (colour accuracy, print quality, declarations, spelling, font size, grammar, trademark issues, etc.) are the sole responsibility of the customer. Likewise, any protective rights of third parties must be observed by the customer which shall bear the sole liability for violations of competition, trademark or patent law. In particular, the customer is the food business operator within the meaning of the EU Information Regulation No. 1169/2011 and thus responsible for complying with the requirements regarding information on food.

Insofar as a liability for Egger Getränke cannot be excluded based on the respective legal situation, the customer shall indemnify Egger Getränke from any claims in the internal relationship and provides appropriate compensation, including all costs to defend such claims. This provision also applies if the rights of third parties are impaired by the placing on the market of the respective product.

1. 4. In addition to the agreed transfer price for the planned production quantity, the advance payment must also cover customer-specific raw materials, which may exceed the planned production quantity depending on the order quantities of the upstream suppliers.
   5. If the packaging is done in containers supplied by the customer, no warranty is given for the suitability of the packaging. Egger Getränke is entitled, but not obliged, to complain about unsuitable packaging material. If no replacement of the objected packaging material is made within two weeks, Egger Getränke is entitled to use suitable material at the customer's expense.
   6. In addition to points 6.1 and 6.2, the following is agreed:

Deviations from the actual filling weight are possible due to different specific weights of individual batches, and not considered a defect within the scope of the finished packaging regulation.

Egger Getränke does not assume any warranty regarding the recipe-related chemical, physical and microbiological reactions of the finished product.