General sales terms and conditions (1.1.2020)

1. Sphere of Applicability

Denk Ingredients GmbH (Neherstraße 9, 81675 Munich, Germany) trades raw materials for usage in foodstuffs, nutritional supplements, sports nutrition, the pharma industry as well as cosmetic and veterinary products. The following Sales Terms and Conditions shall be valid for dealings with entrepreneurs in accordance with the German Civil Code (hereafter: “Orderer”). In principle, we shall not recognise any terms and conditions of the Orderer that are opposing or deviate from our Sales Terms and Conditions unless we expressly approve their validity in writing. Our Sales Terms and Conditions shall also be valid for all future business dealings with the Orderer in the version that is valid at the time that the order is made insofar as it encompasses legal dealings of a related type.

2. Conclusion of the Contractual Agreement

An order shall be regarded as being a binding offer from the Orderer to conclude a contractual agreement. We may accept this offer within two weeks after its receipt in an express or an implied manner. Any previously-rendered offers upon our part shall be considered to be non-binding.

3. Offer Documents

We reserve all rights – particularly ownership rights and copyrights – to all documents provided to the Orderer in conjunction with the issuance of the order. These documents may not be made available to third parties without our consent.

4. Prices and Payment

All prices shall be considered to be total prices plus the statutory VAT. No additional packaging and shipping costs shall be charged.

Insofar as no fixed price provision has been agreed, we reserve the right to make appropriate price changes as the result of changes in wage, materials, purchasing and sales costs for deliveries. In this regard, the Orderer may demand corresponding documentation with regards to the price changes. If the price is 20% or more above the original price, the Orderer may withdraw from the Agreement. This right must be promptly asserted upon receiving the notification of the increased price.

The availment of a discount is permissible only by express agreement. Unless something else has been agreed, the purchase price shall become immediately payable and must be paid without any discounts upon the issuance of the invoice. Payment default interest shall be charged in the amount of 9 % above the respective base lending rate per year. We reserve the right to assert higher payment default damages.

5. Offsetting and Retention Rights

The Orderer shall be entitled to offset with counterclaims only insofar as a counterclaim has been legally upheld, is undisputed or has been recognised by us. In this regard, the Orderer shall be authorised to exercise a right of retention only insofar as his counterclaim is based upon the same contractual relationship.

6. Delivery Timeframe and Partial Delivery

The beginning of our prescribed delivery timeframe shall require the prompt and proper fulfilment of the Orderer’s obligations. We reserve the right to assert the defence of the non-fulfilled contractual agreement. Delivery timeframes shall be considered to be binding insofar as we have committed to them in writing (§ 126 1st Para. of the German Civil Code). Any minor failures to meet a delivery timeframe (less than one week) shall be permissible insofar as no absolute fixed transaction has been agreed. Force majeure, government measures, strikes, lockouts and other events which result in an impediment, hindrance or which make the delivery more difficult shall entitle us to a corresponding extension of the delivery timeframe including any required run-up period or to rescind the contractual agreement. The same shall be valid for any corresponding events affecting our sub-suppliers. In such a case (force majeure, among others), the Orderer may demand that we make a declaration regarding whether we shall withdraw from the Agreement or deliver within an appropriate timeframe; in the case that we fail to make a declaration in this regard, the Customer himself may withdraw from the Agreement.

Partial deliveries shall be permissible in a scope which is reasonable for the Orderer if the partial delivery is usable for the Orderer based upon the contractually-designated purpose, the delivery of the rest of the ordered goods has been ensured and the Orderer will incur neither substantial additional expenditures nor additional costs.

7. Delivery Acceptance Default or Late Delivery

If the Orderer enters into delivery acceptance default or he culpably violates other cooperation obligations, then we shall be entitled to demand compensation for any damages which we have incurred in this regard – including the reimbursement of any additional expenditures. We reserve the right to assert more extensive claims. Insofar as the aforementioned requirements have been fulfilled, the risk of an accidental destruction or an accidental deterioration of the purchased goods shall be transferred to the Orderer at the point in time when he has entered into delivery acceptance default or payment default.

In the case of a late delivery, which is not based upon intentional wrongdoing or gross negligence, the lump-sum late delivery compensation shall amount to 0.5 % of the invoiced amount of the service/product that is being delivered late for each full week of the delay, but nonetheless at most 5 %.

8. Transfer of Risk when Shipping

If, upon the Orderer’s request, the goods are shipped to the Orderer, then the risk of the accidental destruction or the accidental deterioration of the goods shall be transferred to the Orderer upon the sending of the goods to the Orderer, but nonetheless by no later than when the goods leave the factory/warehouse. This shall be applicable regardless of whether the shipment of the goods is made from the place of performance or who assumes the freight costs.

9. Reservation of Ownership

The delivered goods shall remain our property until the Orderer has settled all his payment obligations in full from the business relationship with us. The Orderer shall be obliged to promptly notify us comprehensively in text form of any seizures or other interventions by third parties so that we can assert our rights from the reservation of ownership.

In the case of contractual violations by the Orderer, we shall be entitled to withdraw from the Agreement and take back the purchased goods. A right of retention from any other claims than claims based upon the concluded contractual agreement may not be asserted against this right to demand the return of the goods.

The Orderer shall be entitled to resell the goods during ordinary business dealings. He shall already now assign to us all payment claims to which he is entitled from the resale to a third party. We hereby accept the assignment. After the assignment, the Orderer shall continue to be authorised to collect the payment claim. However, we reserve the right to collect the payment claim on our own as soon as the Orderer enters into payment default, a petition has been filed for the opening of bankruptcy proceedings or payments have been discontinued. Upon our request, our Orderer shall be obliged to notify his customers of the assignment of the payment claims.

The reservation of ownership shall also extend to the products created through the processing, mixing or combining with our goods. If, in the case of a processing, mixing or combining with third-party goods, their ownership rights continue to be valid, then we shall acquire a co-ownership stake to them based upon the proportional value of the invoiced amounts of these processed goods. Moreover, for the goods created through the processing, the same shall apply as for purchased goods subject to a reservation of ownership.

Upon the Orderer’s request, we shall be obliged to release some of the security to which we are entitled insofar as its value exceeds the payment claims to be secured by more than 15 %.

10. Quality Features of the Goods

The agreed quality features of the goods shall in principle be considered to be only our product specifications. The quality of the goods shall otherwise be based upon customary usage unless something else has been agreed in the individual case and has been confirmed by us in writing. In principle, the Orderer shall receive no guarantees from us in the legal sense with regards to the quality features of the goods. We reserve the right to make modifications of the delivery goods which are customary for the industry insofar as they do not unreasonably restrict the Orderer and insofar as they do not affect the usability of the goods.

11. Notification of Defects

The Orderer shall be obliged to promptly inspect the goods upon their receipt at his own expense – particularly with regards to the number of units and weight – and record any complaints in this regard on the delivery note or freight note and/or the receipt of delivery and to conduct at least quality controlling through random sampling. A notification of defects must be submitted by no later than the end of the work day which follows the delivery date for the goods. In the case that a notification is made of a concealed defect which initially remained undiscovered despite a proper initial inspection having been conducted, the following shall apply upon a deviating basis: The notification of defects must be submitted by the end of the work day following the discovery thereof, but nonetheless by no later than one year after the delivery of the goods and/or their acceptance. The notification of defects must be received by us in text form within the aforementioned timeframes.  Notifications of defects made to commercial agents, brokers or agents shall not be considered to be valid notifications of defects. The notification of defects must state at least the type and scope of the purported defect. The Orderer shall be obliged to make the goods that are the subject of a notification of defects available at the inspection site so that they can be examined by us, our supplier or our commissioned expert. Furthermore, any complaint shall be excluded as soon as the buyer mixes, resends or resells the delivered goods or has begun their processing or finishing. Goods regarding which a notification of defects has been made that does not fulfil the form and deadline requirements shall be considered to have been approved and accepted.

12. Warranty

The Orderer’s warranty rights shall require that the Orderer has properly fulfilled his obligations to inspect and make notification of defects that are owed in accordance with Clause 11. Only the Orderer shall be entitled to claims based upon defects and these claims shall not be assignable.

Claims for defects shall not be valid particularly: In the case of only a minor deviation from the agreed quality feature, in the case of only a minor restriction of usability, in the case of natural wear-and-tear or deterioration as well as in the case of damage which is created after the transfer of risk as the result of flawed or negligent handling, excessive workloads, unsuitable operational resources or owing to special external influences which are not required in accordance with the Agreement. If the Orderer or third parties improperly undertake actions or modifications, then likewise no claims for defects shall apply for them and the resulting consequences.

If, despite the exercising of all due care, the delivered goods are discovered to have a defect which already existed at the time that risk was transferred, then we shall, subject to the receipt of a timely notification of defects and as we so choose, either rectify the goods or make a replacement delivery. We must always be granted the opportunity to render subsequent performance within an appropriate timeframe. Claims for recourse shall remain unaffected by the aforementioned provision without any restrictions. If the subsequent performance is unsuccessful, the Orderer may – notwithstanding any damage compensation claims – withdraw from the Agreement or reduce the purchase price.

Claims of the Orderer owing to expenditures required for the purpose of subsequent performance – particularly transport, road, labour and materials costs – shall be excluded insofar as the expenditures increase because the goods that we have delivered have subsequently been moved to another location than the contractually-agreed delivery destination unless the moving of the goods corresponds to their contractual usage.

Claims for defects shall become statute-barred by no later than 12 months after the delivery of the goods by us to our Orderer. The statute of limitations period shall remain unaffected in the case of recourse against the supplier in accordance with §§ 478, 479 of the German Civil Code. This shall not be valid insofar as it concerns damage compensation claims owing to defects. For these claims, the following Clause 13 shall be valid.

13. Liability

Otherwise, our liability for contractual violations shall be restricted to intentional wrongdoing and gross negligence. This restriction shall not be valid in the case of the loss of life, physical injury and damage to the health of the Orderer or claims owing to the violation of cardinal obligations. In this regard, we shall be liable for each degree of culpability. Insofar as it encompasses damages which do not result from the loss of life, physical injury and the damage to the health of the Orderer, we shall be liable only for the typically-occurring damages. The aforementioned liability provision shall also be valid for our employees and our legal representatives or our representatives who are authorised to conduct our legal dealings as well as for our vicarious agents.

14. Form of Declarations

Legally-relevant declarations and notifications which the Orderer must render to us or to a third party must be in writing insofar as the aforementioned Sales Terms and Conditions do not prescribe something else upon an exceptional basis.

15. Statute of Limitations for Our Own Claims

In deviation from § 195 of the German Civil Code, our claims for payment shall become statute-barred in five years. With regards to the beginning of the statute of limitations period, § 199 of the German Civil Code shall be valid.

16. Applicable Law / Place of Performance / Legal Venue / Contractual Language / Partial Invalidity

This Agreement and the entire legal relationships between the parties shall be subject to the law of the Federal Republic of Germany while excluding the United Nations Convention on Contracts for the Sale of Goods.

The place of performance and place of payment shall be our commercial residence unless the order confirmation states something else. The exclusive legal venue shall be the court which is competent for our commercial residence.

The prevailing contractual language shall be German. If versions in other languages should exist in addition to a German language version of these Sales Terms and Conditions or contractually-essential documents, solely the text of the German language documents shall be binding. In the case of deviations between the German language version and the version in another language, only the German version shall be valid.

If individual provisions of these Sales Terms and Conditions should be discovered to be invalid, this shall not affect the validity of the provisions as a whole.

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