General Terms and Conditions (August 4, 2022)

1. Scope of Application

Denk Ingredients GmbH (Neherstraße 9, 81675 Munich, Germany) trades in raw materials for use in food, food supplements, sports nutrition, the pharmaceutical industry, and cosmetic and veterinary products. The following terms of sale apply to business transactions with entrepreneurs within the meaning of the German Civil Code (hereinafter: “Customer”). We generally do not recognize any terms of the Customer that contradict or deviate from our terms of sale, unless we expressly agree to their validity in writing. Our terms of sale also apply to all future transactions with the Customer in the version valid at the time of the order, insofar as they are legal transactions of a similar nature.

2. Conclusion of Contract

An order is considered a binding offer by the Customer to conclude a contractual agreement. We may accept this offer expressly or implicitly within two weeks of its receipt. Offers made by us prior to this are considered non-binding.

3. Quotation Documents

We reserve all rights – in particular ownership and copyright – to all documents provided to the Customer in connection with the placement of an order. These documents may not be made accessible to third parties without our consent.

4. Prices and Payment

All prices are total prices plus statutory value-added tax. No additional packaging and shipping costs will be charged.

Unless a fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in labor, material, procurement, and distribution costs for deliveries. In this context, the Customer may request corresponding documentation regarding the price changes. If the price is 20% or more above the original price, the Customer may withdraw from the contract. This right must be asserted immediately upon receipt of the notification of the increased price.

The utilization of a discount is only permissible by express agreement. Unless otherwise agreed, the purchase price is due immediately and payable upon invoicing without any deduction. In case of default in payment, default interest of 9% above the respective base interest rate per year will be charged. The right to claim further damages for delay remains reserved.

5. Set-off and Rights of Retention

The Customer is only entitled to set off counterclaims insofar as a counterclaim has been legally established, is undisputed, or has been acknowledged by us. The Customer is only authorized to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.

6. Delivery Time and Partial Delivery

The commencement of the delivery period stipulated by us requires the immediate and proper fulfillment of the Customer’s obligations. We reserve the right to plead non-performance of the contract. Delivery periods are considered binding insofar as we have confirmed them in writing (Section 126 para. 1 sentence 1 German Civil Code). Minor exceedances of a delivery date (less than one week) are permissible, provided no absolute fixed-date transaction has been agreed upon. Force majeure, official measures, strikes, lockouts, and other events that lead to an impediment, hindrance, or difficulty in delivery entitle us to a corresponding extension of the delivery period, including a necessary start-up time, or to withdraw from the contract. The same applies to corresponding events affecting our sub-suppliers. In such a case (including force majeure), the Customer may demand a declaration from us as to whether we will withdraw or deliver within a reasonable period; if we do not declare, the Customer may withdraw themselves.

Partial deliveries are permissible to an extent reasonable for the Customer if the partial delivery can be used by the Customer for the contractually intended purpose, the delivery of the remaining ordered goods is ensured, and the Customer does not incur significant additional effort or costs as a result.

7. Default in Acceptance or Delayed Delivery

If the Customer defaults on acceptance or culpably violates other duties to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect – including reimbursement of any additional expenses. The right to assert further claims remains reserved. If the aforementioned conditions are met, the risk of accidental loss or accidental deterioration of the purchased item transfers to the Customer at the time they fall into default of acceptance or debtor’s default.

In the event of a delay in delivery not based on intent or gross negligence, the liquidated damages for delay amount to 0.5% of the invoice value of the delayed service/product for each full week of delay, up to a maximum of 5%.

8. Transfer of Risk upon Shipment

If the goods are shipped to the Customer at their request, the risk of accidental loss or accidental deterioration of the goods transfers to the Customer upon dispatch of the goods, but no later than upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.

9. Retention of Title

The delivered goods remain our property until the Customer has fully settled all their payment obligations arising from the business relationship with us. The Customer is obliged to notify us immediately and comprehensively in text form of any seizures or other interventions by third parties, so that we can assert our rights arising from the retention of title.

In the event of a breach of contract by the Customer, we are entitled to withdraw from the contract and reclaim the purchased item. Against this demand for surrender, a right of retention cannot be asserted based on claims other than those arising from the concluded contract.

The Customer is entitled to resell the goods in the ordinary course of business. They hereby assign to us all payment claims to which they are entitled from the resale to a third party. We hereby accept the assignment. After the assignment, the Customer remains authorized to collect the claim. However, we reserve the right to collect the claim ourselves as soon as the Customer defaults on payment, an application for the opening of insolvency proceedings has been filed, or payments have been suspended. Upon our request, our Customer is obliged to notify their customers of the assignment of the payment claims.

The retention of title also extends to the products resulting from the processing, mixing, or combining with our goods. If, in the case of processing, mixing, or combining with third-party goods, their ownership right remains, we acquire co-ownership of these in proportion to the invoice amounts of these processed goods. For the item resulting from the processing, the same applies as for the reserved goods purchased under retention of title.

Upon the Customer’s request, we are obliged to release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 15%.

10. Quality Characteristics of the Goods

As agreed quality characteristics of the goods, only our product specifications generally apply. Otherwise, the quality of the goods is determined by customary trade practices, unless something else has been agreed upon in individual cases and confirmed by us in writing. The Customer generally does not receive guarantees in the legal sense regarding the quality of the goods from us. We reserve the right to make industry-standard changes to the delivery item, provided they do not unreasonably restrict the Customer and do not impair the usability of the goods.

11. Notification of Defects

The Customer is obliged to inspect the goods immediately upon receipt at their own expense – particularly with regard to quantity and weight – and to note any complaints in this regard on the delivery note or bill of lading and/or the delivery note, and to carry out at least a quality control by means of random samples. A notification of defects must be submitted no later than the end of the working day following the delivery date of the goods. In the event that a hidden defect is reported which initially remained undetected despite a proper initial inspection, the following applies by way of derogation: The notification of defects must be made by the completion of the processing.

12. Warranty

The Customer’s warranty rights presuppose that the Customer has duly fulfilled their inspection and notification obligations owed under Section 11. Claims for defects are only available to the Customer and are not assignable.

Claims for defects do not exist in particular: in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, and in the case of damage arising after the transfer of risk due to faulty or negligent handling, excessive stress, unsuitable operating materials, or due to special external influences not assumed under the contract. If improper changes or repair work are carried out by the Customer or by third parties, no claims for defects exist for these and the resulting consequences either.

Should the delivered goods show a defect that already existed at the time of the transfer of risk, despite all due care, we will, subject to timely notification of defects, either rectify the goods or deliver replacement goods, at our discretion. We must always be given the opportunity for subsequent performance within a reasonable period. Recourse claims remain unaffected by the above provision without restriction. If subsequent performance fails, the Customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the purchase price.

Claims of the Customer for expenses incurred for the purpose of subsequent performance – in particular transport, travel, labor, and material costs – are excluded insofar as the expenses increase because the goods delivered by us have subsequently been moved to a location other than the contractually agreed place of delivery, unless the relocation corresponds to their contractual use.

Claims for defects expire no later than 12 months after the delivery of the goods by us to our Customer. The limitation period in the case of supplier recourse according to Sections 478, 479 German Civil Code remains unaffected. This does not apply to claims for damages due to defects. For these claims, the following Section 13 applies.

13. Liability

Otherwise, our liability for breaches of contract is limited to intent and gross negligence. This limitation does not apply to injury to the Customer’s life, body, and health or claims due to the breach of cardinal obligations. In this respect, we are liable for every degree of fault. Insofar as damages are not based on injury to the Customer’s life, body, or health, we are only liable for the typically foreseeable damage. The above liability regulation also applies to our employees and our legal representatives or our representatives authorized to conduct our legal transactions, as well as to our vicarious agents.

14. Form of Declarations

Legally relevant declarations and notifications that the Customer must make to us or a third party require written form, unless the preceding terms of sale stipulate otherwise.

15. Limitation Period for Our Own Claims

Notwithstanding Section 195 of the German Civil Code, our payment claims expire in five years. Regarding the commencement of the limitation period, Section 199 of the German Civil Code applies.

16. Applicable Law / Place of Performance / Place of Jurisdiction / Contract Language / Partial Invalidity

This contract and all legal relations between the parties are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.

The place of performance and payment is our registered office, unless otherwise stated in the order confirmation. The exclusive place of jurisdiction is the court responsible for our registered office.

The authoritative contract language is German. Should versions in other languages also exist alongside a German version of these terms of sale or essential contractual documents, only the text of the German documents is binding. In case of discrepancies between the German language version and a version in another language, only the German version applies.

Should individual provisions of these terms of sale prove to be invalid, this shall not affect the validity of the provisions as a whole.

17. Disclaimer

We would like to point out that we, Denk Ingredients GmbH, are a pure B2B trader. The recipient of the goods assesses their marketability with regard to the specific intended use under their sole responsibility. The recipient may therefore also be considered the responsible party placing the product on the market (e.g., when used in a food product, as the responsible food business operator within the meaning of Article 3 No. 3 of Regulation (EC) No. 178/2002) and must not only initially check the marketability of the goods but also continuously monitor it. The recipient is solely responsible for ensuring that all laws and regulations applicable due to the intended use are properly complied with.