General Terms and Conditions of Sale of SIngredients GmbH
1. Scope of application
1.1 The following General Terms and Conditions of Sale shall apply to all supply contracts concluded by SIngredients GmbH (hereinafter referred to as " SIngredients "). Any terms and conditions of the Customer (hereinafter referred to as " Buyer ") deviating from or supplementing these General Terms and Conditions of Sale shall not be accepted by SIngredients, unless SIngredients has expressly agreed to their application. The General Terms and Conditions of Sale shall also apply if SIngredients carries out the delivery without reservation in the knowledge of terms and conditions of the Buyer which are contrary to or deviate from these General Terms and Conditions of Sale.
1.2 These General Terms and Conditions of Sale shall apply exclusively to contractors within the meaning of Section 14 BGB (German Civil Code), legal entities under public law and special funds under public law.
2. Conclusion of contract
2.1 The offers of SIngredients are without engagement and non-binding.
2.2 If the Buyer makes a binding offer to enter into a contract by placing an order, SIngredients shall be entitled to accept the contractual offer within one week after receipt, unless a different binding period is set out in the Buyer's order. The contract shall be concluded by SIngredients' order confirmation.
3. Prices and Payment
3.1 Unless otherwise agreed, the prices quoted shall be FCA (warehouse of Ingredients) in accordance with the INCOTERMS in the most recent version. VAT is not included in the prices shown. It will be shown separately on the invoice at the respective statutory rate, if applicable.
3.2 The purchase price is payable 30 days after delivery and receipt of invoice, unless stipulated otherwise.
3.3 If the agreed payment period is exceeded, the Buyer shall be in default of payment and thus obliged to pay interest on arrears at the statutory rate. Claims of SIngredients for compensation of further damages caused by delay and the right to rescind the contract under the statutory conditions remain unaffected.
3.4 The Buyer shall only be entitled to rights of set-off and retention if its counterclaims have been determined by a non-appealable court decision, are undisputed or have been accepted by SIngredients. This restriction does not apply to claims of the Buyer based on defects or based on partial non-performance of the contract to the extent that these claims result from the same contractual relationship as the payment claim of SIngredients.
3.5 SIngredients shall be entitled to perform outstanding deliveries only against advance payment or provision of security if, after the conclusion of the contract, SIngredients becomes aware of circumstances which endanger the settlement of its claim for payment. If the Buyer does not comply with a request of SIngredients to make an advance payment or to provide security within a reasonable period of time, SIngredients shall be entitled to rescind the contract.
4. Delivery and Delay
4.1 Compliance with delivery dates is conditional upon the timely and proper performance of the Buyer's contractual obligations.
4.2 Unless otherwise agreed, delivery shall be made FCA (warehouse of SIngredients) in accordance with the INCOTERMS in the most recent version. The risk of accidental loss or accidental deterioration shall pass to the Buyer when the goods are made available on the means of transport. The statutory provisions on the transfer of risk in the event of default of acceptance shall remain unaffected.
4.3 If SIngredients ships the goods to another destination at the Buyer's request and expense, SIngredients is entitled to determine the mode of shipment (in particular transport company, shipping route, packaging) itself.
4.4 Events beyond the control of SIngredients which prevent it from performing its obligations in a timely manner, such as (but not limited to) strikes, lawful lockouts, wars, riots, the effects of epidemics and pandemics, governmental orders or natural disasters, shall release SIngredients from the performance of its contractual obligations for the duration of the impediment and an appropriate restart phase so that the delivery time is extended accordingly. In the case of epidemics and pandemics, this shall also apply if such epidemics and pandemics had already occurred at the time of the conclusion of the contract, but SIngredients was neither aware nor should have been aware of their concrete effects on the contract. SIngredients undertakes to inform the Buyer without undue delay about the occurrence and the expected duration of such event. If such an impediment lasts longer than three months, either party shall be entitled to rescind the contract, but the Buyer shall only be entitled to do so after giving notice to that effect. In this case, any consideration already paid shall be refunded without delay.
4.5 The obligation to deliver is subject to correct and timely delivery to SIngredients by its suppliers. In the event that SIngredients does not receive correct and timely deliveries from its suppliers, SIngredients shall inform the Buyer thereof without undue delay.
4.6 In the event that SIngredients is liable due to a delay in delivery, its obligation to compensate for damages caused by the delay (damages in addition to performance) shall be limited to a maximum of 5 % of the net purchase price of the delayed delivery insofar as it is not guilty of intent or gross negligence. Liability for culpable injury to life, body or health shall remain unaffected. Liability for damages in lieu of performance shall be governed by the liability provisions under clause 7 of these Conditions of Sale.
4.7 SIngredients is entitled to make partial deliveries to an extent reasonable for the Buyer. 4.8 If the Buyer is in default of acceptance or breaches any other obligation to cooperate, SIngredients shall be entitled to claim compensation for the resulting damage including any additional expenses, unless the Buyer proves that it is not responsible for the breach of duty. Further legal claims remain unaffected.
In the case of weight specifications which are provided with the addition "approx." or a comparable formulation, weight deviations are permissible within a tolerance range of up to 10 %.
6.1 The Buyer's warranty rights require that he properly inspects the delivered goods for defects in accordance with the statutory provision in Section 377 HGB (German Commercial Code) and immediately notifies any defects. The notification of defects must be made in writing.
6.2 If the Buyer has duly complied with its obligations to give notice of defects, it shall be entitled to the statutory warranty rights in the event of a defect with the proviso that the choice between subsequent delivery and rectification shall be incumbent on SIngredients. Claims for damages shall only exist within the scope of clause 7.
6.3 Claims for defects shall become time-barred one year after delivery of the goods. Notwithstanding the above, the statutory warranty period of two years shall apply to claims for damages based on intentional or grossly negligent breach of duty or culpable injury to life, body or health. The statutory limitation provisions in the case of supplier recourse (Section 445b BGB) shall also remain unaffected.
7.1 SIngredients shall be liable in accordance with the statutory provisions if the Buyer asserts claims for damages based on intent or gross negligence or a culpable breach of an essential contractual obligation. Material contractual obligations are obligations the performance of which is necessary to achieve the purpose of the contract and compliance with which the Buyer regularly relies on and may rely on. To the extent that SIngredients is neither guilty of intent nor of gross negligence, the liability for damages in the aforementioned cases shall be limited to the foreseeable damage typical for the contract. In addition, the limitation of liability according to clause 4.6 shall apply to liability due to delay.
7.2 Liability for culpable injury to life, limb or health shall remain unaffected by the above limitations of liability; this shall also apply to liability in the event of the assumption of a guarantee as well as mandatory liability in accordance with the Product Liability Act and Section 24 LFGB (Foodstuffs and Feed Code).
7.3 Unless otherwise provided above, the liability of SIngredients for damages is excluded irrespective of the legal nature of the asserted claim.
7.4 The foregoing provisions shall apply mutatis mutandis to the extent that the Buyer demands reimbursement of futile expenses instead of a claim for damages.
8. Retention of title
8.1 SIngredients retains title to the goods until all payments resulting from the business relationship with the Buyer have been received. If a current account relationship exists between the Buyer and SIngredients, the retention of title shall also apply to the respective recognized balance.
8.2 The Buyer is not entitled to pledge the goods subject to retention of title or to assign them to third parties as security. In case of seizure or other interventions by third parties, the Buyer shall immediately notify SIngredients in writing. To the extent that the third party is not able to reimburse SIngredients for the judicial and extra-judicial costs incurred to avert the interference, the Buyer shall be liable for the loss incurred by SIngredients.
8.3 If the Reserved Goods are processed by the Buyer, it is agreed that the processing is carried out on behalf of SIngredients as manufacturer and that SIngredients immediately acquires the ownership or - if the processing is carried out using materials of several owners or the value of the processed item is higher than the value of the Reserved Goods - the co-ownership of the newly created item in proportion of the invoice value of the Reserved Goods to the invoice value of the newly created item. The Buyer shall keep the new item in safe custody for SIngredients.
8.4 If the goods which are subject to retention of title are combined or inseparably mixed or blended with other items to form a single item and if one of the other items is to be considered as the main item, the Buyer shall transfer to SIngredients a proportionate co-ownership of the single item or respectively of the total quantity in proportion of the invoice value of the goods subject to retention of title to the invoice value of the other mixed or blended items.
8.5 If the retention of title is not effective under the law in whose area the goods are located, the security corresponding to the retention of title in this area shall be deemed agreed. If the Buyer's cooperation is required for the creation of such rights, the Buyer shall be obliged to take all reasonable measures (such as registration or publication requirements) at its own expense which are necessary for the creation and maintenance of such rights.
8.6 SIngredients undertakes to release the existing securities upon the Buyer's request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon SIngredients.
9.1 The Buyer undertakes to treat as confidential and to use exclusively for contractual purposes any business secrets and other information relating to the business operations of SIngredients of which it becomes aware through the business relationship and in the confidentiality of which it has a legitimate interest, including specifications and formulations (hereinafter collectively referred to as " Confidential Information "). Confidential Information shall be kept safe and shall not be disclosed to any third party, whether orally or in writing or in any other form, without the express prior written consent of SIngredients. Third parties within the meaning of this clause also include companies affiliated with the Buyer within the meaning of §§ 15 ff. AktG (German Stock Corporation Act).
9.2 The Buyer shall disclose Confidential Information only to those employees who need to know such information in order to perform the contract concluded between the parties and shall limit such disclosure to the extent necessary for such purpose. The Buyer shall only be entitled to disclose such information if the employees have been obliged to maintain confidentiality to the same extent as the Buyer. Evidence of this shall be provided upon request.
9.3 There shall be no obligation of confidentiality if and to the extent that the information obtained a) has become generally known or publicly accessible without breach of this confidentiality clause; b) was already in the Buyer's possession at the time of disclosure without any breach of confidentiality obligations, or he lawfully obtains it from a third party after disclosure without any breach of confidentiality obligations; c) was developed by the Buyer without the use of the Confidential Information; or d) is required to be disclosed by law or by administrative or judicial order. In the latter case, the Buyer shall notify SIngredients in advance of the disclosure and limit such disclosure to the extent strictly necessary.
9.4 Subject to statutory retention obligations, the Buyer shall, upon request, return or demonstrably destroy all documents and materials containing Confidential Information, whether provided in written, electronic or other form, at SIngredients' option. Excluded are automatically created backups, in which case the Buyer undertakes to continue to treat them as confidential and not to use them for any further purpose.
10. Choice of Law and Place of Jurisdiction
10.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be the registered office of SIngredients.