1.1These General Terms and Conditions of Business ("GTC") apply to all offers, contracts, deliveries and services of Tenerco GmbH ("Tenerco") vis-à-vis its contractual partners, whether such partners act vis-à-vis Tenerco as buyer/purchaser or as seller/supplier (jointly referred to as "Customer"), both in principal trading and in intermediary activity. The provisions of these GTC apply mutatis mutandis to both roles, unless their content expressly indicates that they relate to one particular role only.
1.2Tenerco concludes contracts exclusively with entrepreneurs within the meaning of section 1 of the Austrian Commercial Code (UGB), as well as with legal entities under public law and special funds under public law. Contracts with consumers within the meaning of the Austrian Consumer Protection Act (KSchG) are neither offered nor concluded. The Customer warrants that it enters into the contract in the course of its business.
1.3These GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Customer do not become part of the contract, even if Tenerco does not expressly object to them or performs delivery or services without reservation while aware of such terms.
1.4These GTC also apply to all future transactions with the same Customer without the need for renewed incorporation.
1.5Incorporation. These GTC are made available to the Customer prior to conclusion of contract and are accessible at all times at www.tenerco.com. Tenerco refers to their application in offers, order confirmations and contract documents. Publication on the website alone does not replace such reference.
1.6Individually negotiated contract documents (in particular Sales & Purchase Agreements, sales contracts, recaps, Fee Protection Agreements, IMFPA, NCNDA) prevail over these GTC in the event of conflict. In all other respects these GTC apply on a supplementary basis.
2.1Tenerco operates in international commodity trading and acts either
2.2The applicable role follows from the respective offer or contract document. Where Tenerco acts as intermediary, the supply contract is concluded exclusively between seller and buyer. In such case Tenerco assumes no liability for performance, solvency, ability to deliver, quality, quantity, authenticity of documents or any other obligation of the introduced parties.
2.3Tenerco does not provide legal, tax, financial or investment advice and is not a licensed financial services or investment firm. All market, price or product information is non-binding and does not replace the Customer's own assessment.
3.1All offers, quotations, indications, price lists and market information issued by Tenerco are non-binding and subject to change, unless expressly designated as binding ("firm offer") and stated together with a validity period.
3.2A contract is concluded only upon written order confirmation by Tenerco, upon a contract signed by both parties, or upon execution of the delivery. E-mail satisfies the written form requirement.
3.3Where a firm offer states an express validity period, that period shall prevail; otherwise the offer must be accepted within two (2) business days. Firm offers are, irrespective of any stated validity period, always made subject to prior sale as well as subject to a satisfactory compliance, sanctions and credit assessment of the Customer.
3.4The pricing basis follows from the respective offer or order confirmation, in particular whether a fixed price or an index-/benchmark-linked price (plus premium or less discount, as applicable), together with the applicable pricing period, has been agreed.
3.5Side agreements, undertakings and amendments require written form to be effective.
4.1Prices are stated in the currency specified in the contract, net, plus any applicable VAT, customs duties, levies and fees, in accordance with the agreed delivery term (Incoterms® 2020).
4.2Unless agreed otherwise, invoices are due for payment without deduction immediately upon presentation of the shipping or delivery documents. Agreed payment instruments (letter of credit, standby LC, bank guarantee, advance payment) shall be provided by the Customer in due time and in the agreed form through a first-class bank acceptable to Tenerco. Costs of the instruments are borne by the instructing party.
4.3Payments shall be made free of any deductions, retentions, counterclaims, taxes or bank charges to the account designated by Tenerco. Payment is deemed made only upon unconditional credit to Tenerco's account.
4.4In the event of late payment, default interest at a rate of 9.2 percentage points above the base rate pursuant to section 456 UGB shall accrue. In addition, the Customer owes the flat-rate collection charge of EUR 40.00 pursuant to section 458 UGB, together with reimbursement of any further collection, debt recovery and legal enforcement costs that are necessary and reasonable for appropriate enforcement.
4.5Set-off and retention by the Customer are permitted only in respect of counterclaims that are undisputed, acknowledged by Tenerco or established by final court judgment.
4.6Where there are justified doubts as to the Customer's solvency, in particular in the event of payment default, Tenerco is entitled to declare all outstanding receivables immediately due, to demand advance payment or security, to withhold further deliveries and/or to withdraw from the contract.
4.7Allocation of payments. Incoming payments shall be applied first to costs, then to interest and finally to the oldest outstanding principal claim, irrespective of any contrary allocation by the Customer.
4.8Withdrawal and cover transaction. If the Customer is more than ten (10) calendar days in default with a due payment, or fails to provide an agreed payment instrument in due time, Tenerco is entitled, after setting a grace period of five (5) business days, to withdraw from the contract and to dispose of the goods elsewhere. Any resulting shortfall in proceeds as well as all additional costs (storage, demurrage, return transport, price difference) shall be reimbursed by the Customer.
4.9Failure to take delivery. If the Customer fails to take delivery of the contractual goods in whole or in due time, or cancels a binding order, Tenerco is entitled to claim liquidated damages of 20 % of the net order value. The Customer remains entitled to prove that no loss has arisen or that the loss is substantially lower than the flat rate, in which case the flat rate shall be reduced accordingly. Tenerco's right to claim proven higher damages remains reserved.
4.10Index-/benchmark-linked prices. For index- or benchmark-linked prices, price changes result directly from movements in the agreed reference during the agreed pricing period; this does not constitute a subsequent price change.
4.11Confirmed fixed prices. Where a fixed price has been agreed by an order confirmation signed by both parties or confirmed by e-mail, that price is binding on both parties. A change requires renewed written agreement of both parties.
4.12Customs duties, levies, exchange rates. Without prejudice to clauses 4.10 and 4.11, changes in customs duties, freight rates, taxes, levies, CO₂/CBAM costs or exchange rates occurring between conclusion of contract and delivery, which are legally mandatory and not attributable to either party, shall be borne by the Customer.
5.1Deliveries are made in accordance with the Incoterms® 2020 term agreed in the contract. The passing of risk is governed exclusively by that term.
5.2Delivery dates and periods are approximate, unless expressly agreed as a fixed-date transaction. Partial deliveries are permitted and may be invoiced separately.
5.3Unless agreed otherwise, a quantity tolerance of +/- 5 % applies to bulk commodities, at the seller's/shipper's option, invoiced at the contract price.
5.4Where agreed, quality and quantity shall be determined by an independent, internationally recognised inspection company (e.g. SGS, Intertek, Bureau Veritas), in principle at the loading port or loading point, or, where agreed on the basis of the applicable delivery term (Incoterms® 2020) or the individual contract, at another destination or discharge point named in the contract. In back-to-back transactions, where Tenerco on-sells the goods without itself taking physical possession, the certification issued by the upstream supplier at loading shall be deemed the agreed determination of quality and quantity for the purposes of this clause; clause 7 remains unaffected. The respective certificates shall be final and binding on both parties, save for manifest error or fraud. Unless agreed otherwise, the costs of the initial inspection are borne by the seller; costs of any additional inspection commissioned by the Customer are borne by the Customer.
5.5The Customer is obliged to provide means of transport, storage and discharge capacity in due time and to obtain, at its own cost and responsibility, all permits, licences and registrations required for customs clearance, import and use (including REACH, CBAM and product approvals). Delays originating in the Customer's sphere (demurrage, detention, storage costs) shall be borne by the Customer.
5.6Default in acceptance. If the Customer is in default of acceptance, the risk of accidental loss and accidental deterioration passes to the Customer upon commencement of such default. Tenerco is entitled to store the goods, or have them stored, at the Customer's cost and risk.
5.7The goods are intended exclusively for the contractually agreed purpose of use and the agreed destination region. The Customer is solely responsible for the suitability of the goods for its specific application.
6.1The delivered goods remain the property of Tenerco until full payment of all claims arising from the business relationship.
6.2The Customer may resell the goods subject to retention of title in the ordinary course of business; however, the Customer hereby assigns to Tenerco, by way of security, all claims arising from such resale up to the amount of the outstanding invoice. Tenerco accepts this assignment.
6.3The Customer shall notify Tenerco without delay of any third-party access to the goods subject to retention of title and shall defend against such access at its own cost.
7.1Handover with accompanying documents. The goods are handed over to the Customer together with the agreed accompanying documents (in particular delivery note, waybill, weight or quantity certificate and, where agreed, analysis or quality certificate). These documents are available to the Customer in full at the time of handover.
7.2Duty to inspect prior to acknowledgement of receipt. The Customer is obliged to inspect, or have inspected, the goods and the accompanying documents before confirming receipt, with regard to identity, quantity, packaging, marking, contamination and recognisable condition. The Customer expressly acknowledges that such inspection is both possible and reasonable.
7.3Effect of the acknowledgement of receipt. The signing and/or stamping of the delivery note, waybill or equivalent receipt document by the Customer or by any person acting for the Customer, without a written reservation recorded therein, constitutes unconditional acceptance and binding confirmation that the goods were received in the quantity and type stated and in contractual condition. A reservation is effective only if it is specifically recorded in the receipt document itself and notified to Tenerco in writing without delay.
7.4Waiver of inspection. If the Customer waives, in whole or in part, the inspection available to it under clause 7.2, this shall be to the Customer's sole detriment. The Customer may not subsequently rely on circumstances that would have been recognisable upon such inspection.
7.5Transfer into the Customer's exclusive sphere. Upon taking over, the goods pass into the exclusive custody, safekeeping and control of the Customer. From that moment, Tenerco no longer has any possibility of verifying or influencing the storage, handling, commingling, identity or condition of the goods. The parties expressly record that a subsequent alteration, damage, commingling, contamination, improper storage or substitution of the goods within the Customer's sphere cannot be excluded and is not verifiable by Tenerco.
7.6Notification periods. The notification of defects is governed exclusively by the periods set out in clause 8.1. In addition, recognisable deviations must already be recorded in the receipt document pursuant to clause 7.3; failing such record, claims in respect of recognisable deviations are excluded.
7.7Evidentiary obligations. In order to substantiate a complaint, it is incumbent on the Customer:
If the Customer fails to comply with any of these obligations, its claims are excluded to the extent that the determination of the existence, cause or timing of the alleged defect has thereby been impaired or frustrated. Where such determination is thereby rendered impossible altogether, the claims are excluded in their entirety.
7.8Alteration of the goods after taking over. Claims in respect of a defect may be excluded to the extent that, following a duly made notice of defects, the commingling, blending, decanting, repacking, processing, alteration, onward transport, storage, resale or consumption of the goods impairs or frustrates the determination of the existence, cause or extent of the alleged defect. The Customer is obliged, as far as possible, to leave the goods subject to complaint unaltered until joint inspection has taken place; where relocation is unavoidable for operational or logistical reasons, the Customer shall notify Tenerco in advance and safeguard the identity and traceability of the goods.
7.9No right of return or rescission. Following unconditional taking over, there is no entitlement to return of the goods, rescission of the contract, refund of the purchase price or replacement delivery. The Customer's payment obligation remains unaffected; retention and set-off are excluded.
7.10Unconditional payment. Unconditional payment of the invoice after taking over shall be deemed an acknowledgement of due performance of the contract.
7.11Burden of proof. The Customer bears the burden of proving that an alleged defect already existed at the time of the passing of risk. The presumption under the second sentence of section 924 of the Austrian Civil Code (ABGB) is excluded to the extent legally permissible.
7.12Reservation. Tenerco's liability for intent and for fraudulent concealment of a defect, as well as mandatory statutory provisions, remain unaffected. Clause 7 governs the taking over of the goods, the evidentiary obligations and the burden of proof; the periods for notification of defects and the warranty period are governed exclusively by clause 8. The provisions complement one another.
8.1Inspection and notice of defects (section 377 UGB). The Customer shall inspect the goods without delay upon taking over and shall notify defects in writing, specifying the complaint precisely, irrespective of when the defect is actually discovered. The following periods apply uniformly, from discharge or taking over of the goods:
Upon expiry of the respective period, the goods are deemed approved and all claims in respect of the defect concerned are excluded. No further periods for the notification of defects apply.
8.2Complaints must be substantiated by a report of an independent, internationally recognised inspection company based on a duly drawn and sealed retention sample.
8.3Goods subject to complaint may not be processed, commingled, resold or disposed of without Tenerco's written consent. Otherwise all claims lapse.
8.4In the event of a justified notice of defects, Tenerco is entitled, at its own option, to remedy, replacement or price reduction. In variation of section 933 ABGB, the warranty period is thirty (30) days from taking over, unless otherwise agreed in the individual contract; given the limited storage stability of the goods and the storage and transit periods at upstream suppliers or at the Customer, which are regularly not verifiable by Tenerco, this period is objectively justified. A different period appropriate to the specific product and its durability may be agreed in the individual contract depending on the product type. Any recourse claim under section 933b ABGB is excluded.
8.5No warranty applies in cases of improper storage, handling, commingling or treatment of the goods by the Customer or third parties.
9.1Tenerco is liable only for intent and gross negligence. Liability for slight negligence is excluded, except in the case of personal injury.
9.2Liability is excluded in all cases for loss of profit, loss of production, business interruption, indirect damage, consequential damage, pure financial loss, loss of interest, damage arising from third-party claims, and cover purchases.
9.3Tenerco's liability is limited in amount to the net invoice value of the affected delivery or – in the case of intermediary transactions – to the amount of the commission actually received by Tenerco.
9.4In intermediary activity, Tenerco is liable solely for diligent introduction and arrangement, and not for the performance, solvency, ability to deliver or good faith of the introduced parties.
9.5Claims for damages become time-barred – to the extent legally permissible – within twelve (12) months from knowledge of the damage and of the party causing it.
9.6These limitations of liability also apply for the benefit of Tenerco's employees, corporate bodies, vicarious agents and subcontractors.
9.7Mandatory liability. The above limitations and exclusions of liability do not apply to damage resulting from injury to life, body or health, nor in cases of intent or fraudulent conduct, nor where an express guarantee has been assumed, nor to the extent that liability exists under the Austrian Product Liability Act or under other mandatory statutory provisions.
10.1Neither party shall be liable for non-performance or delay caused by events beyond its reasonable control, in particular: war, terrorism, riot, embargo, sanctions, strike, lockout, pandemics, natural disasters, fire, explosion, closure of ports, canals or transport routes, failure of refineries, pipelines or upstream suppliers, official measures, export or import prohibitions, and failures of payment systems or banks.
10.2The affected party shall notify the other party in writing without delay. Performance obligations are suspended for the duration of the event. If the event continues for more than thirty (30) days, either party is entitled to withdraw from the affected contract without liability for damages.
11.1Both parties undertake to comply with all applicable sanctions, embargo and export control provisions, in particular those of the European Union, the Republic of Austria, the United Nations, the United Kingdom and the United States (OFAC).
11.2The Customer warrants that neither it nor its beneficial owners, corporate bodies, end users or means of transport employed are listed on any relevant sanctions list, and that the goods will not, directly or indirectly, reach sanctioned persons, entities or countries.
11.3Tenerco is entitled to suspend deliveries and payments or to withdraw from the contract without compensation where performance would violate applicable sanctions, anti-money-laundering or export control provisions, or where there is reasonable suspicion thereof.
11.4Both parties undertake to comply with applicable anti-corruption and anti-money-laundering provisions. The Customer is obliged to provide the documents requested by Tenerco within the scope of KYC/AML completely and truthfully, and to notify any changes without delay.
11.5The Customer shall indemnify and hold Tenerco harmless against all damages, costs and expenses arising from a breach by the Customer of this clause 11.
12.1All information transmitted in the course of the initiation and execution of business – in particular prices, terms, sources of supply, contact details, contract documents and supplier identities – shall be treated as confidential and may not be disclosed to third parties without prior written consent.
12.2The Customer undertakes, for a period of two (2) years from disclosure, not to contact, contract with or transact with business contacts introduced or disclosed by Tenerco, directly or through affiliated companies, employees, agents or third parties, in circumvention of Tenerco.
12.3In the event of a breach of clause 12.1 or 12.2, the Customer owes Tenerco the commission or margin that would have accrued to Tenerco upon proper execution, without prejudice to further claims for damages.
13.1In intermediary activity, Tenerco's commission entitlement arises upon conclusion of the arranged transaction and – unless agreed otherwise – falls due immediately upon receipt of payment by the principal, per delivery/shipment.
13.2The commission entitlement subsists even where the transaction is subsequently amended, extended, repeated, increased in volume or executed through affiliated companies of the parties.
13.3The parties may specify the commission arrangement in a separate Fee Protection Agreement, IMFPA or NCNDA; any such agreement prevails over this clause.
14.1Tenerco processes personal data exclusively within the framework of the GDPR and the Austrian Data Protection Act. Further details are set out in the privacy policy on Tenerco's website.
15.1The content of Tenerco's website serves general information purposes only and does not constitute a binding offer.
15.2Tenerco assumes no warranty for the accuracy, completeness or currency of the content. The operators of external linked websites are solely responsible for their content.
15.3All content of the website (texts, graphics, logos, layout, databases) is protected by copyright. Any use beyond the limits permitted by law requires Tenerco's prior written consent.
16.1Governing law: Austrian law applies exclusively, to the exclusion of the conflict-of-law rules of private international law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
16.2Place of jurisdiction: The exclusive place of jurisdiction for all disputes arising out of or in connection with the business relationship is the competent court in Feldkirch, Austria. Tenerco is additionally entitled to bring proceedings at the Customer's general place of jurisdiction. Overriding mandatory rules on jurisdiction, in particular under Regulation (EU) No 1215/2012 (Brussels I recast), the Lugano Convention and other applicable international rules on jurisdiction, remain unaffected.
16.3Arbitration clause (optional, where agreed in the individual contract): In place of clause 16.2, the parties may agree that all disputes shall be finally settled by arbitration, at their election either:
The choice of arbitration rules is made in the individual contract and depends in particular on the value and international character of the transaction concerned; for higher-value transactions or transactions with international counterparties, the ICC Rules may be agreed, and the Vienna Rules for other business. Language of the proceedings in both cases: English.
16.4Place of performance: Unless otherwise governed by the applicable Incoterms term, the place of performance for delivery and payment is Tenerco's registered office in Dornbirn.
16.5Assignment: The Customer may not assign rights or obligations under the contract to third parties without Tenerco's prior written consent.
16.6Written form: Amendments and supplements to these GTC and to the contract require written form; this also applies to any waiver of the written form requirement. E-mail is sufficient.
16.7Severability: Should individual provisions of these GTC be invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision that comes closest to its economic purpose.
16.8Language: These GTC exist in a German and an English version. In the event of discrepancies, the German version shall prevail.
16.9Amendments: Tenerco is entitled to amend these GTC. Amendments apply exclusively to contracts concluded after the new version has come into force. Contracts already concluded remain governed exclusively by the version made available to the Customer at the time of conclusion, or published at that time.