General Terms and Conditions of NewIngredients GmbH
General Terms and Conditions of NewIngredients GmbH
1. Scope of Application
1.1 These General Terms and Conditions (hereinafter referred to as “AGB”) shall apply to all business relations between NewIngredients GmbH (hereinafter referred to as “we” or “us”) and our customers. The AGB are only intended for use vis-à-vis entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.2 These AGB shall also apply to all future transactions with a customer of the same or a related type, without this requiring a separate agreement or additional notification.
1.3 These AGB shall also apply if we execute a customer’s orders with knowledge of the customer’s conflicting or deviating terms and conditions of business; deviating terms and conditions of business and purchase of the customer are hereby rejected. Nor does reference to orders or other documents to which the customer’s or a third party’s terms and conditions of business are attached or a reference to them constitute any agreement on our part regarding the validity of deviating terms and conditions of business. Our General Terms and Conditions shall only not apply to a customer if and to the extent that we expressly acknowledge the terms and conditions of the customer concerned in writing. Only in the latter case shall the terms and conditions of such customer prevail.
2. Conclusion and Contents of Contract, Information, Confidentiality
2.1 Our offers are always subject to confirmation and non-binding, unless we have expressly stated otherwise. A contract is only concluded when we expressly confirm a customer’s order in writing or when we begin to execute the order. The content of the contract shall be determined by our order confirmation and these AGB. If delivery is made without a separate order confirmation, our delivery note shall replace the order confirmation. Oral declarations or promises made prior to the conclusion of the contract are always non-binding and will be replaced by the written contract.
2.2 All information regarding our products, in particular illustrations and quality, quantity, weight, dimension, performance and use information contained on our homepage, in offers and/or brochures or made available in any other way, are approximate only and do not form the basis for quality agreements. The same applies to information and advice regarding our products, which in principle only reflect experience and average values. The quality, suitability, function, durability and usability of our goods are exclusively determined by our performance descriptions, insofar as these are expressly made part of the contract. Deviations which only insignificantly affect the intended use, as well as changes and adjustments due to manufacturing, production and other technical reasons, are generally permissible. The usability for the intended purpose is to be examined by the customer himself.
2.3 Guarantees and warranties with regard to the quality, usability or durability of our goods must be expressly designated as such in the order confirmation or agreed in writing otherwise in order to become effective. When samples and specimens are supplied, their quality shall not be deemed to be guaranteed unless this has been expressly agreed in the order confirmation. The same shall apply mutatis mutandis to the details of laboratory results and analyses.
2.4 We retain all property rights and copyrights to all documents and information, such as calculations, recipes, etc., made available to the customer – including in electronic form – or otherwise made accessible.
2.5 Our documents and the information contained therein may not be made accessible to third parties unless (i) we have made them generally public or (ii) we have given the customer our express written consent to do so. At our request, the Customer shall immediately return to us all documents and information or destroy or permanently delete them (whereby storage within system backups is permissible provided that these files are not restored and reused).
3. Prices and Terms of Payment
3.1 Our prices are quoted exclusive of statutory value added tax.
3.2 Our prices apply “ex works” (ab Werk) including packaging suitable for dispatch, unless otherwise stated in the order confirmation. If the goods are dispatched to the customer at the customer’s request, the customer shall be invoiced in full for the dispatch costs incurred by us, unless otherwise agreed in writing.
3.3 Should cost increases occur at our company after conclusion of the contract, which may, for example, be due to a change in material, wage, transport, insurance or distribution costs or a change in the regulatory environment (customs duties, certification, taxes), we reserve the right to adjust our prices accordingly. Upon request, we will provide the customer with information on the underlying cost changes. Upon request, we will provide the customer with information on the underlying cost increases (without this constituting an obligation to disclose trade secrets; our right to protect trade secrets takes precedence in case of doubt).
3.4 Unless otherwise agreed or stated on the invoice, invoices shall be payable no later than thirty (30) days after the invoice date. Upon expiry of such period, the customer shall be in default of payment without this requiring any additional notice or reminder.
3.5 For amounts not paid on time, we charge default interest at the statutory rate (currently 9 percentage points above the respective base interest rate of the European Central Bank p.a., Section 288 Para. 2 BGB) as well as the default lump sum pursuant to Section 288 Para. 5 BGB (currently 40 Euro). We expressly reserve the right to prove higher damages.
3.6 The customer shall only be entitled to deduct a discount if this has been agreed separately in writing or stated on the invoice.
3.7 The customer may only offset and/or exercise rights of retention if the counterclaim or right of retention has been legally established, is undisputed or has been acknowledged by us in writing. Furthermore, a right of retention may only be exercised to the extent that the counterclaim is based on the same contractual relationship.
3.8 We only accept bills of exchange and cheques on account of performance (erfüllungshalber) free of costs and expenses and only on the basis of a separate written agreement.
4. Delivery, Transfer of Risk, Obstacles to Performance
4.1 Information on delivery periods and dates are only approximate unless otherwise expressly agreed in writing. Delivery periods shall commence only after complete clarification of all execution details and shall presuppose the timely and proper fulfilment of the customer’s obligations. The customer may set us a reasonable deadline for delivery at the earliest 5 working days after expiry of such delivery periods/dates. We shall not be in default until the grace period has expired.
4.2 In case of doubt, the customer must make payment before delivery. Unless otherwise agreed, we may make the commencement of the execution of the order dependent on an advance payment. If the advance payment is made with delay, we shall be entitled to postpone the delivery for the duration of the delay and a reasonable start-up period thereafter.
4.3 In the event of default or impossibility of performance, we shall only be liable for claims for damages in accordance with Clause 5 of these AGB. The damage caused by delay to be compensated by us in accordance with Clause 5 of these AGB shall be limited to 0.5% of the value of the untimely delivery or partial delivery for each completed week, but not more than 5% of the value of the delayed (partial) delivery.
4.4 Our delivery obligations are subject to correct and timely self-delivery, unless we are responsible for the incorrect or delayed self-delivery. In the event of force majeure, such as operational disruptions, transport delays, industrial disputes, non-delivery, incorrect or delayed delivery by the supplier and other impediments to performance for which we are not responsible, we may postpone delivery for the duration of the impediment and a reasonable start-up period thereafter.
4.5 Insofar as the hindrance is likely to be permanent, we shall be entitled to refuse delivery of the goods in whole or in part. We shall inform the customer in writing or by e-mail if such an event occurs. In this case, the customer shall not be entitled to any claims for damages against us. He shall be released from the obligation to render consideration. If and to the extent that he has already provided such consideration, it shall be refunded to him.
4.6 We shall be entitled to make partial deliveries if the partial delivery can be used by the customer within the scope of the contractual purpose, if the delivery of the remaining ordered goods is ensured and if the customer does not incur any considerable additional expenditure or additional costs as a result thereof (unless we declare our willingness to bear such costs).
4.7 If delivery on call has been agreed, the calls must be made within three months of conclusion of the contract, unless otherwise agreed in writing. If the delivery is not called in due time, Clause 4.9 of these AGB shall apply accordingly.
4.8 All sales are “ex works” unless otherwise agreed or stated on the delivery note or order confirmation (e.g. Incoterms). Shipment and transport shall always be at the risk of the customer. The risk shall also pass to the customer in the case of partial deliveries as soon as the consignment has been handed over to the carrier – irrespective of whether it is a consignment belonging to our company or to a third party – or has left our works for the purpose of dispatch, unless Section 4.9 of these General Terms and Conditions of Business applies or something to the contrary has been agreed or is stated on the delivery note or order confirmation (e.g. Incoterms).
4.9 If the customer refuses to accept the goods, if the dispatch of the delivery is delayed for other reasons which lie with the customer, or if the customer is otherwise in default of acceptance, the risk of accidental loss of the goods shall pass to the customer (passing of risk). All storage costs after transfer of risk shall be borne by the customer. We charge storage costs of 0.5% of the invoice amount for each month or alternatively the actual damage. The customer reserves the right to prove a lower damage. After fruitless expiry of a grace period of fourteen (14) days granted to the customer, we shall be entitled to withdraw from the contract or demand damages instead of performance.
4.10 Unless otherwise agreed in writing, we do not take back any packaging material.
5. Warranty and Liability
5.1 Delivered goods must be carefully inspected by the customer, even if samples or specimens have been sent to him beforehand, immediately after arrival at the place of destination. In particular, the quality of the goods must be checked. If boxes, cartons or other containers are delivered, random samples shall be taken. The delivery shall be deemed to have been approved if a notice of defects has not been received by us in writing or by email with an exact description of the defect
– within one (1) week after receipt of the goods at the place of destination; or
– if the defect was not identifiable during the inspection (which the customer must prove), within one (1) week after discovery of the defect.
5.2 The above obligation to notify also applies to excess and short deliveries as well as to any incorrect deliveries.
5.3 Transport damage must be reported to the freight forwarder immediately; the notification obligations of the German Freight Forwarding Standard Terms and Conditions apply in this respect.
5.4 Insofar as a defect exists and a complaint has been made in good time, we shall, at our discretion and within a reasonable period of time, remedy the defect or deliver a defect-free item. If the supplementary performance fails, the customer shall be entitled, at his option, to demand a price reduction or withdrawal from the contract. However, there shall be no right of rescission if only minor defects are involved. If the customer chooses to withdraw from the contract after failed subsequent performance, he shall not be entitled to any additional compensation for the defect in question.
5.5 The above provisions conclusively contain the warranty for our goods. In particular, we shall be liable for all other claims for damages to which the customer may be entitled due to or in connection with defects in the delivered goods, irrespective of the legal basis, exclusively in accordance with clauses 5.7 to 5.11 of these AGB.
5.6 Insofar as we have declared a guarantee for the quality of an item (cf. Clause 2.3), we shall be liable in accordance with the statutory provisions.
5.7 For claims for damages due to culpable acts, irrespective of the legal basis, including, but not limited to, default, defective delivery, breach of duties arising from a contractual relationship or duties in contract negotiations, tort, product liability (with the exception of liability in accordance with the Product Liability Act), we shall only be liable – insofar as nothing to the contrary arises from Clause 5.8 of these AGB below – in the event of intent or gross negligence.
5.8 Liability for slight negligence is excluded unless it is a breach of a material contractual obligation (cardinal obligation) or an injury to life, limb or health. A personal liability of our legal representatives, vicarious agents and employees for damages caused by them through slight negligence is excluded; in addition, the limitations specified in the above provisions also apply to these persons
5.9 If the goods in question are trading goods which are not produced by us, but which we merely resell, the customer shall be obliged to pursue all possible claims against our suppliers prior to making use of them. For this purpose, we undertake to assign to the customer any warranty and compensation claims to which we are entitled against our suppliers. The customer is also obliged to pursue the claims in court. If the use of our supplier remains unsuccessful, the customer shall be entitled to assert claims against us in accordance with Sections 5.7, 5.8, 5.10 and 5.11 of these General Terms and Conditions.
5.10 Warranty claims of the customer shall become statute-barred within one year of delivery of the goods. Claims for damages by the customer based on liability for negligence shall become statute-barred within one year of delivery of the goods. Insofar as the prerequisites for delivery recourse pursuant to Section 478 BGB are met, the statutory limitation period of Section 445b Para. 2 BGB shall apply.
6. Retention of Title
6.1 We retain title to the goods delivered by us until all present and future claims arising from the business relationship with the customer have been settled.
6.2 Any processing or transformation of our goods by the customer shall always be carried out on our behalf as manufacturer within the meaning of Section 950 BGB, without this giving rise to any obligations on our part. Processed or transformed goods shall be deemed reserved goods pursuant to Clause 6.1 of these AGB. If the customer processes, combines or mixes the reserved goods with other goods not belonging to us to form a new item or a mixed stock, we shall be entitled to co-ownership in the proportion of the invoice value of the reserved goods to the value of the other processed or mixed goods at the time of processing. The co-ownership share shall be deemed to be reserved goods pursuant to Clause 6.1 of these AGB.
6.3 If the reserved goods are combined or mixed with other goods and if other goods not belonging to us are to be regarded as the main item within the meaning of Section 947 BGB, it is hereby agreed that a co-ownership share in the ratio of the invoice value of the reserved goods to the value of the main item shall pass to us and that the customer shall co-keep the item for us free of charge. The co-ownership share shall be deemed to be reserved goods pursuant to Clause 6.1 of these AGB.
6.4 The customer is obliged to always keep the reserved goods fully insured against the usual risks and to prove this to us upon request. The customer hereby assigns to us any insurance claims he may have (conditional on the occurrence of the condition stated in Clause 6.1).
6.5 The customer shall keep the reserved goods in safe custody for us. Upon reasonable request, we shall at any time be provided with an inventory and sufficient identification at the location of the respective storage. In the event of seizures or other impairments of our rights by third parties, the customer must inform us immediately in detail and support us in a reasonable manner in the exercise of our rights.
6.6 The customer shall be entitled to sell the goods in the ordinary course of business at his normal conditions provided that he ensures that his claims from the resale are transferred to us in accordance with clauses 6.7 to 6.9 of these AGB.
6.7 The customer hereby assigns to us all claims arising from the resale of the reserved goods, also within the framework of contracts for work and services or contracts for the delivery of movable goods to be manufactured or produced, including all ancillary rights. The assignment is conditional upon the occurrence of the condition stated in Clause 6.1. The customer shall only be entitled to assign the claims to third parties with our prior written consent.
6.8 If the customer sells the reserved goods together with other goods not supplied by us, the assignment of the claim from the resale shall only apply to the amount of the invoice value of our reserved goods at the time of delivery. In the event of the sale of goods in which we have co-ownership pursuant to Clauses 6.2 or 6.3 of these AGB, the assignment of the claims shall apply to the amount of this co-ownership share.
6.9 If the assigned claim is included in a current account, the customer hereby assigns to us a part of the balance corresponding to the amount of this claim, including the final balance from the current account (conditional on the occurrence of the condition specified in Clause 6.1).
6.10 Until revoked, the Customer shall be entitled to collect claims arising from the resale pursuant to Sections 6.7 to 6.9 of these AGB. Our authority to collect the claim ourselves shall remain unaffected thereby.
6.11 If the customer does not fulfil his obligations under this contract or other contracts with us or does not fulfil them on time or if circumstances become known to us which significantly reduce his creditworthiness, we shall be entitled to
– prohibit the resale, processing and reworking of the reserved goods as well as their mixing or combination with other goods;
– withdraw from this contract and to demand the immediate surrender of the reserved goods; we shall then be entitled to enter the customer’s premises and take possession of the reserved goods at the customer’s expense and, without prejudice to the customer’s payment and other obligations, to dispose of them in the best possible way by private sale or auction; we shall offset the proceeds of such disposal against the customer’s liabilities after deduction of any costs incurred; we shall pay any surplus to the customer;
– to demand from the customer the immediate surrender of all names and contact details of the third-party debtors of the claims assigned to us as well as all information on the claims; and
– disclose all assignments to third-party debtors, to revoke the granted direct debit authorization and to collect the claims; all proceeds due to us from assignments shall be forwarded to us immediately upon receipt as soon as our claims against the customer are due.
6.12 If the realisable value of the security interests granted to us amounts to 110% (or more) of our total claims against the customer, we shall be obliged, at the customer’s request, to release or reassign corresponding security; the choice of security shall be incumbent on us.
6.13 In the event of default in payment, the customer shall be obliged to surrender the reserved goods to us immediately upon our first request.
7. Place of Performance, Applicable Law, Jurisdiction
7.1 Place of performance for all obligations under this contract is Witten, Germany.
7.2 This contract and all claims and legal relationships arising therefrom shall be governed by the laws of the Federal Republic of Germany, to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
7.3 Unless a mandatory exclusive place of jurisdiction arises from statutory provisions, the courts in Bochum (Germany) shall have exclusive jurisdiction for all disputes in connection with the business relationship with the customer. This jurisdiction agreement shall not apply in relation to customers who are not merchants.
8. Final Provisions
8.1 Amendments and supplements to the contract concluded with the customer (hereinafter referred to as the “Contract“) including these AGB and including this written form clause, must be made in writing in order to be effective. The same applies to collateral and additional agreements.
8.2 Rights of third parties (with the exception of Clause 5.8 S.2 of these AGB) are not established by the contract. The customer is not entitled to assign rights and claims arising from the contract to third parties without our prior written consent.
8.3 Should any provision of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties shall be obliged to replace the invalid provision with a legally valid provision that comes as close as legally possible to the economic purpose of the invalid provision. The same applies to any loopholes.
8.4 In the event of deviations or doubts, the German version of these AGB shall prevail.