General Customer Sales Terms and Conditions of Denk Ingredients GmbH

1. Area of Application

1.1          Denk Ingredients GmbH, Neherstraße 9, 81675 Munich, Germany (hereinafter the “Supplier“) operates an online shop on its website at www.denkingredients.de and www.denkingredients.com, where visitors to the website (hereinafter the “Customer“) can buy goods, specifically raw materials for nutritional supplements and food. The following General Terms and Conditions, in the version applicable at the time of the order, shall apply exclusively for the business relationship between the Supplier and the Customer.

1.2          By sending the order via the online shop or accepting the delivery, the Customer recognises these Terms and Conditions as being binding. Deviating conditions of the Customer are not recognised, unless the Supplier explicitly agrees to their validity.

1.3          These Terms and Conditions only apply to contractors. In accordance with Section 14 BGB [German Civil Code], a contractor is a natural person or legal entity or a legal partnership which, in concluding a legal transaction, exercises its commercial or independent professional activity.  No sales are made to consumers.

1.4          The languages in which contracts can be concluded are German and English.

 

2. Registration

2.1          The Provider’s online services are available to registered and non-registered users alike. Registration at www.denkingredients.de and www.denkingredients.com is free of charge and can be cancelled at any time without notice. Cancellation can be made, with no specific form being required, by sending an email to info@denkingredients.de.

2.2          Only contractors (a definition can be found under Clause 1.3 of these Terms and Conditions) may register for this online shop and must provide a valid VAT ID number.

2.3          In the event of registration, the Customer must provide all data requested completely and truthfully. Should the Customer provide false information, the Supplier is authorised to restrict, block or delete the user account. When selecting measures, the Supplier observes the legitimate interests of the Customers affected and their negligence. Should the Customer’s data change during membership, it undertakes to amend its user profile immediately to reflect the change.

2.4          When registering, the Customer selects a username and a password (hereinafter “user data”). Usernames that infringe upon the rights of third parties – particularly copyrights and trademarks – or which otherwise violate the law or public policy are not permitted.

2.5          The Customer undertakes to treat user data confidentially and to prevent it from being accessed by unauthorised third parties. The Customer undertakes to inform the Supplier immediately should there be evidence that the member account has been misused.

2.6          The Supplier reserves the right to delete user accounts that have not been accessed for six months or for which the Customer can no longer be reached via the email address provided.

 

3. Conclusion of Online Contract

3.1          The representation of products in the online shop constitutes a non-binding online catalogue and not a legally binding offer. By sending an order by clicking on the order button, the Customer makes a legally binding offer to purchase the goods contained in the basket (hereinafter the “Order“). The Order can only be made and submitted when the Customer accepts these Terms and Conditions by clicking on the “Accept Terms and Conditions” button and, thereby includes them in its Order.

3.2          The sending of a confirmation email by the Supplier does not constitute acceptance of the Order. This merely confirms receipt of the order. The Order shall be accepted within two weeks of receipt of the Order, either by delivery of the goods ordered or by sending an email in which the acceptance is explicitly declared to the Customer (hereinafter “Acceptance“).  Decisive for the calculation of the deadline is the receipt of the declaration of acceptance via email, or the delivery date in the event of delivery.

3.3          The text of the contract is saved by the Supplier following the conclusion of the contract and can be viewed by the Customer online, provided that said Customer has a user account.

 

4. Delivery

4.1.        Delivery shall be made to the address specified by the Customer. The Supplier uses various delivery service providers for delivery.

4.2          Information about the delivery deadline is not binding, unless, in exceptional cases, the delivery date was promised in writing. Supplier deliveries that are made in Germany within ten days of the agreed delivery date are regarded as being on time.

4.3          Should a product selected by the customer not be in stock at the time of ordering, the Supplier will inform the Customer of this. If the product is permanently out of stock, the Supplier will not issue a declaration of acceptance. A contract is not entered into in this case.

4.4          If the product ordered by the Customer is only temporarily unavailable, the Supplier will immediately inform the Customer of this. In the event of a delay in delivery of more than two weeks, the Customer shall be entitled to withdraw from the contract. The Supplier is also entitled to withdraw from the Contract. In this case, any payments already made by the Customer shall be reimbursed immediately.

4.5          Correct and on-time deliveries by the Supplier’s own suppliers remain reserved. Should this not be the case, the Supplier shall not be in default in the event of delayed delivery. Agreed delivery or performance deadlines can be extended as appropriate, including beyond the time stated in Clause 4.2, in the event of unforeseen obstacles, for which we are not at fault, suffered by the Supplier or its own suppliers or agents, or as a result of force majeure, for example strike, lockouts, breakdowns, missing or delayed deliveries of essential input material, fire, floods, blockades and a shortage of energy and raw materials.

4.6          In the event of delays caused by circumstances pursuant to Clause 4.5, the Supplier shall not be obliged to compensate the damage caused by this delay or due to the resulting impossibility of delivery.

 

5. Delivery Costs

The shipping costs will be stated in the order form and shall be borne by the Customer.

 

6. Prices and Payment Conditions

6.1          The product prices stated on the item page are net prices including standard packaging costs. The valid statutory value added tax is indicated separately and is to be borne by the customer.

6.2.        The Customer can make payment via prepayment and credit card. Some customers are also granted the payment option of payment on account, provided that this has been agreed upon in advance with the Supplier.

6.3          The purchase price is due for payment via advance payment or credit card payment immediately upon the conclusion of the contract. In the event of a payment on account granted on an exceptional basis, the purchase price is due for payment within ten days of receipt without deduction. All costs for collection and discounting are borne by the Customer.

6.4          Should the Customer be in default of payment, the Supplier is entitled to charge nine percentage points above the valid basic interest rate of the European Central Bank (ECB) as flat-rate compensation for damages. The Supplier is permitted to prove that higher damage has been incurred. The legal consequences of the payment delay remain unaffected.

 

7. Set-off Rights and Rights of Retention

7.1          The Customer shall only have set-off rights in the event of claims that are undisputed, legally binding or recognised by the Supplier.

7.2          Customer rights of retention are excluded.

 

8 Warranty, Liability

8.1          For defects of goods or title lieing in his responsibility, the Provider shall render supplementary performance in the form of removal of defects or delivery of a defect-free item. The Provider is entitled to choose the form of supplementary performance. If the supplementary performance fails, Customer has the right to reduce the purchase price or to withdraw from the contract. The Provider´s liability is subject to the following provisions.  

8.2.The Provider's liability for damages, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contract negotiation and action in tort is, to the extent that such liability depends on fault, limited pursuant to to following provisions under 8.2.1 -  8.2.5.

8.2.1 The Provider is not liable in the case of ordinary negligence of his bodies, statutory representatives, employees or other vicarious agents inasmuch as it does not concern a breach of contract-essential duties.

8.2.2 To the extent that the Provider is, in principle, liable for damages, such liability shall be limited to damages that Provider foresaw when concluding the agreement as a possible consequence of a breach of contract or which, by applying due care and attention, he should have foreseen. Furthermore, indirect damage and consequential damage resulting from defects in the item supplied are only subject to compensation in so far as such damage is typically to be expected when using the item in conformity with its intended purpose.

8.2.3 In the case of liability for ordinary negligence, the liability of the Provider shall be limited to an amount of EUR 5 Million personal damages and EUR 1 Million financial losses per claim even if a contract-essential duty has been breached.

8.2.4      The aforementioned limitations of liability shall also apply to the Provider´s bodies, statutory representatives, employees or other vicarious agents.

8.2.5      The aforementioned limitations of liability do not apply in case of wilful misconduct, specifically guaranteed characteristics and damage of life, body and health. The liability pursuant to the German product liability law (Produkthaftungsgesetz) remains unaffected.

8.3. In so far as the Provider provides technical information or acts as an adviser and this information or advice is not explicitly part of the contractually agreed services owed by the Provider, this is done free of charge and with the exclusion of any liability. The Customer shall, regardless from information provided by the Provider, investigate each item, in particular in order to verify whether the item is suitable and marketable for the specific purpose intended by the Customer and does not infringe patent rights or any other intellectual property rights. The Customer is responsible for complying with all statutory and regulatory requirements when using the items delivered by the Provider.

8.4 If the recipe is provided by the Customer or the Customer otherwise specifies the characteristics of the delivered goods, no warranty shall be accepted by the Provider for the chemical or physical reactions of the goods or for stability, durability, tolerability, marketability and/or suitability of the delivered goods. In this cases, also any liability of the Provider shall be disclaimed. If the Customer exports the goods delivered by the Provider in other countries than the Federal Republic of Germany, the Customer is responsible for ensuring a proper labelling and the marketability of the goods as well as their compliance with intellectual property rights and all other rights of third parties in the targeted states.

8.5   No warranty shall be accepted by the Provider if the Provider on request of the Customer delivers goods before tests subject to an agreement between the Provider and the Customer regarding the delivered goods have been carried out.

 

9. Reservation of Title

9.1       Goods delivered remain the property of the Supplier until the complete payment of all receivables from the business relationship between the Supplier and the Customer. The addition of individual receivables to an open invoice as well as the recognition of such balance does not affect the reservation of title.

9.2       The Customer is entitled to sell the goods to third parties in the ordinary course of business before complete payment has been made. The Customer is not permitted, however, to pledge the goods or transfer them as security. The resale of goods that have not been paid for can be prohibited by the Supplier for good cause, in particular default in payment. Resale is excluded should an application for the initiation of insolvency proceedings have been made or should payments have been suspended.

9.3       The Customer may rework or process the goods subject to the retention of title or combine and mix them with other items within the normal course of business.

9.4       In the event of the goods subject to the retention of title being combined, mixed, processed or reworked, the Supplier shall be co-owner of the new item together with the Customer and/or further suppliers of the Customer where appropriate, to the proportion of the outstanding invoice amount of the Supplier’s delivery of the total value of the new item.

9.5       In the event of resale in accordance with Clause 9.2 of the goods subject to the retention of title in their original form or in a form that resulted following modification in accordance with Clause 9.3, the Customer assigns any receivables due to it from its purchaser. The Supplier accepts the assignment as conditional payment. The assignment extends to the Customer’s current account balance claims, provided that the Customer has or will bill its receivables through an open account relationship with its purchaser.

9.6       Until revocation, the Customer remains entitled to collect the receivables assigned to the Supplier. It is not permitted, however, to dispose of these, such as through assigning or pledging them, up to the amount of the receivables assigned to the Supplier. The Supplier’s authorisation to collect the assigned receivables itself remains unaffected. The Supplier is only entitled to do so in the event of authorisation being revoked, however. This is the case in particular, however, should the Customer be in default of payment or should the Supplier have reasonable cause for no longer being able to or not meeting his payment obligations. At the request of the Supplier at any time, the Customer undertakes to provide the name, designation and address of its purchaser who holds the goods subject to the retention of title or goods and to inform this party of the assignment.

9.7       The assignment is up to the amount of the invoiced value of the goods disposed of.

9.8       At the customer’s request, the Supplier is obliged to release the securities due to it insofar as its realisable value exceeds the value of its outstanding receivables to the Purchaser by more than 20%. The Supplier may select the securities to be released, however.

9.9       The Customer undertakes to store the goods subject to the retention of title separately to other goods and to mark them as goods subject to the retention of title accordingly. It undertakes to indicate to anyone who intends to assert rights of any kind in these goods that these are goods subject to the retention of title.

9.10     In the event of third party pledging or other interventions, the Customer must notify the Supplier immediately in writing so that action can be pursued pursuant to Section 771 ZPO [Code of Civil Procedure]. Should the third party be unable to reimburse the judicial and extra judicial costs of an action pursuant to Section 771 BGB, the Customer shall be liable for any loss incurred by the Supplier.

  

10. Data Protection

The collection, processing and storage of data takes place exclusively in accordance with the guidelines of the German Data Protection Act. Reference is also made to the Privacy Statement relating to user consent and further information on the collection, processing and use of data, which can be viewed on the Provider's website at www.denkingredients.de or www.denkingredients.com at any time via the “Data Protection" button.

 

11. Reservation of Right of Modification

The Supplier reserves the right to amend these General Terms and Conditions at any time through deletions, replacements or supplements. The General Terms and Conditions in effect at the time of the order shall apply, unless an amendment to these conditions is required for legal reasons or on official order (in this case, the current Terms and Conditions also apply to orders that are made before they take effect).

   

12. Final Provisions

12.1       This contractual relationship is subject exclusively to German law. The UN Convention on Contracts for the International Sale of Goods does not apply.

12.2       The place of performance and jurisdiction for all disputes arising from the business relationship, to the extent permitted, is Munich.

12.3       The Contract shall remain binding in its remaining parts in the event of the legal invalidity of an individual clause. Statutory provisions, where existing, shall apply in place of the invalid points. Insofar as this would constitute an unreasonable hardship for one contracting party, the contract will be ineffective as a whole.

  


 

General Purchasing Terms and Conditions of Denk Ingredients GmbH

 

§ 1      General

 1.            The Terms and Conditions set out below shall form part of any purchase agreement concluded with us, Denk Ingredients GmbH, Neherstraße 9, 81675 Munich, Germany. Our General Terms and Conditions of Purchase shall apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.

 2.            We hereby object to any counter confirmation, counter offer or other reference by the supplier to its general terms and conditions, any dissenting terms and conditions of the supplier shall only apply if we have expressly confirmed the same in writing. If we accept delivery or performance without an express objection, then this shall in no way be deemed as recognition or consent to those other terms and conditions.

 

§ 2          Conclusion of contract

1.            Only our written purchase orders are binding. Any orders, agreements or contractual amendments communicated orally or via telephone, fax, internet or e-mail shall only become legally binding if confirmed by us in writing.

2.        Our Orders are only valid and binding for a period of one week after

placement, unless another period of acceptance was expressly agreed upon. Late acceptance leads to a new offer by the supplier. We remain title to any documents and materials submitted by us to the supplier in the course of an order and they shall not in any way be forwarded or communicated to any third party and in particular shall not be used for advertising or competition purposes.

 

§ 3      Passing of risk, Place of performance, Documents 

1.            The place the risk passes, the place of delivery and the place of performance within the meaning of the applicable regulations shall be the place designated by us in each purchase agreement. In general, our place of business shall be the place of performance unless otherwise agreed upon in each purchase agreement. In case we pick up the goods the place of performance shall be the place designated by us. The goods will be inspected at the designated place; their condition at that time shall be decisive. In case of pick up we bear the risk of transportation.

2.            Supplier shall deliver the goods with all required documents indicating our reference number/purchase number. In case supplier omits the above indication, processing the deliveries could cause delays we shall not be held responsible or liable for.

3.            For a period of at least 5 years from the date of each shipment of Products, supplier agrees to keep complete records of the manufacture, storage, shipment and sale of the goods and, upon our request to make these records available to us upon demand.

 

§ 4       Delivery 

1.            Unless period and time of delivery have not already been agreed upon in each purchase agreement, supplier shall inform us about the delivery time at least two days prior to delivery.

2.            In case supplier fails to deliver on time, upon expiry of a reasonable cure period set by us, we will be entitled to rescind the purchase agreement or claim damages for delayed delivery or non-performance. In case of a firm deal, an extension period is not required. In addition, we will be entitled to claim damages for delay of delivery in the fixed amount of 1% of the value of goods to be delivered per finished week, however not more than 10% in total. Additional legal claims remain unaffected. In particular, in addition to claiming performance, we remain entitled to claim any other agreed contractual penalties. The supplier is permitted to show that damage or decrease in value has either not occurred or is substantially less than the lump sum.

3.            Supplier shall immediately inform us in writing if circumstances occur or become known to cause or threaten delay of delivery.

 

§ 5          Prices and Payment

1.            Prices stated in our orders are binding. Unless otherwise agreed upon, prices include packaging, shipping, customs and any other public charges. Supplier shall bear costs for disposal of packaging.

2.            Invoices shall only be processed by us if they contain our relevant reference or purchase number.

3.            The purchase price shall be due only after full fulfillment of the supplier’s duty to deliver. We accept delivery in installments only under reserve. We shall have the right to choose the payment method. We shall be entitled to offset any claims against the supplier’s claims. Notwithstanding the aforementioned, we remain all applicable legal rights to retain payments.

4.            Supplier shall not be entitled to assign or pledge or in any other way dispose claims and rights against us to the benefit of third parties with the exception of agreements with its pre-suppliers regarding the retention of title to goods.

 

§ 6          Defects

1.            Supplier shall deliver the exact amount of goods ordered. Deviations shall entitle us to refuse delivery or to claim subsequent delivery. Supplier shall bear any costs caused by short delivery.

2.            Delivered frozen goods breaking the cold chain shall be deemed defect.

3.            Supplier agrees to conduct at its own cost an analysis or testing of samples of the goods or samples of any components thereof in accordance with any testing schedule that we may impose from time to time or in case of defects. For such purposes supplier agrees to send such samples to laboratory facilities selected in our sole discretion. Supplier agrees to pay the reasonable costs of any such third party laboratory testing.

4.            Objections shall be raised by us within two weeks after delivery, in case of hidden defects within two weeks after notice of such. §§ 377, 378 of the German Commercial Code (HGB) shall not apply. Warranty claims shall be time-barred after 36 months. We shall be entitled to all applicable legal rights and remedies in case of defects. Notwithstanding the aforementioned, we shall be entitled to rescind the agreement in part if such partial recession is reasonable and at our discretion to claim cure of defects or replacement. Furthermore, we explicitly remain the right to claim damages, in particular for non-performance. In case of reduction of payment we shall be entitled to withhold a reasonable portion of the outstanding amount until the amount to be reducted has been clarified. All costs and damages in connection with justified objections, in particular costs for laboratory testing and subsequent damages and loss of profit shall be borne in the full amount by the supplier. In case refused goods are taken back by the supplier or in case of acceptance of goods by us to an agreed lower price our objection shall be deemed accepted by the supplier. Payments shall not constitute a waiver of any claims or legal remedies.

  

§ 7          Representations and Warranties

Supplier represents and warrants as follows:

a)            Specifications agreed upon shall be deemed guaranteed by the supplier.

b)           The goods shall comply in all respects with all applicable laws, rules and regulations of the country where the goods are manufactured, stored or through which it is shipped, and the countries where the goods shall be used (including, but not limited to, the laws rules and regulations applicable to food, cosmetic products and medicinal products).

c)            The goods shall be manufactured to a high quality and in accordance with best industry practice. The goods are safe, merchantable and fit for their intended purpose and shall comply fully with the specifications in every respect.

d)           The goods are labeled as required by the specifications and by law (including, but not limited to, the laws of the country of manufacture and intended country or countries of use).

e)           The goods are free from any rights of third parties and do not violate the rights of third parties.

f)            None of the goods shall contain any genetically modified organisms, or any ingredients components or products which are derived from the use of gene technology, save to the extent declared to, and previously agreed in writing by us.

 

§ 8      Product Liability and Indemnification

Supplier agrees to full indemnification of us (or any of our affiliate companies) from any liability/claim as a result of the manufacture, delivery and storage of the goods. It shall refund to us any payments that we shall have made to satisfy such justified claims. The duty to indemnification and refund shall not apply if the underlying incident shall have provably been caused through gross negligence or willful misconduct by us any of our employees, representatives, agents or any affiliate. Supplier shall immediately notify us of any litigation that shall have been started or of any claims that shall have been raised against it and shall upon our demand make available to us all relevant documents.

 

§ 9     Final Provisions

1.            For our benefit, the courts of Munich, Germany shall have jurisdictions over all disputes arising from these Terms and Conditions and any agreements concluded with the supplier.

2.            These Terms and Conditions and any agreements concluded with the supplier shall be subject to German law and not to the provisions of the UN Convention on Contracts for the International Sale of Goods.

3.            The invalidity of any provision of these General Terms and Conditions shall not affect the validity of the other provisions. Invalid provisions shall be deemed as replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.

 

Munich, May 2017

Denk Ingredients GmbH, Neherstraße 9, 81675 Munich