General terms and conditions

of NewIngredients GmbH

1. Scope

1.1 These General Terms and Conditions (hereinafter “GTC“) apply to all business relationships between NewIngredients GmbH (hereinafter “we” or “us“) and our customers. The GTC are intended to apply only 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 GTC also apply to all future transactions with a customer of the same or a similar nature, without the need for a separate agreement or additional notice.

1.3 These GTC also apply if we execute a customer’s orders with knowledge of the customer’s conflicting or deviating terms and conditions; any deviating terms of business and purchasing terms of the customer are hereby rejected. Any reference to orders or other documents to which the customer’s or a third party’s terms and conditions, or a reference thereto, are attached does not constitute our agreement to the applicability of deviating terms and conditions. Our GTC shall apply vis-à-vis a customer only unless and to the extent that we expressly acknowledge the respective customer’s terms and conditions in writing. Only in the latter case shall that customer’s terms and conditions take precedence.

2. Conclusion of contract and contract content, documents, confidentiality

2.1 Our offers are always subject to change and non-binding unless we have expressly stated otherwise. A contract is concluded only when we expressly confirm a customer’s order in writing or begin executing the order. The content of the contract is determined by our order confirmation and these GTC. If delivery is made without a separate order confirmation, our delivery note replaces the order confirmation. Verbal statements or assurances made prior to the conclusion of the contract are always non-binding and are replaced by the written contract.

2.2 All information regarding our products, in particular images, quality, quantity, weight, dimensions, performance and application data contained on our website, in offers and/or brochures, or otherwise made available, represent only approximate values and do not form the basis for any agreement on quality. The same applies to information and advice regarding our products, which generally reflect only empirical and average values. The quality, suitability, function, durability and possible uses of our goods are determined exclusively by our performance descriptions, provided these are expressly made part of the contract. Deviations that only insignificantly impair the intended use, as well as manufacturing, production and other technically necessary changes and adjustments, are generally permissible. The customer must verify suitability for the intended purpose.

2.3 Guarantees and assurances regarding the quality, usability or durability of our goods must be expressly designated as such in the order confirmation or otherwise agreed in writing in order to be effective. In the case of delivery of samples and specimens, their quality is not deemed guaranteed unless this has been expressly agreed in the order confirmation. The same applies to the provision of laboratory results and analyses.

2.4 We retain all ownership and copyright rights to all documents and information provided to the purchaser—even in electronic form—or otherwise made accessible, such as calculations, formulations, etc.

2.5 Our documents and the information contained therein may not be made accessible to third parties unless (i) we have made them publicly available to the general public, or (ii) we have given the customer our express written consent to do so. At our request, the customer must immediately return or destroy all documents and information, or permanently delete them (storage within system backups is permitted provided that these files are not restored and used further).

3. Prices and payment terms

3.1 Our prices are generally exclusive of statutory VAT.

3.2 Our prices are ex works, including packaging suitable for shipping, unless otherwise stated in the order confirmation. If the goods are shipped to the customer at the customer’s request, the customer will be charged in full for the shipping costs incurred by us, unless otherwise agreed in writing.

3.3 If, after conclusion of the contract, we incur cost increases, e.g. due to changes in material, labor, transport, insurance or distribution costs, or changes 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 increases (without creating any obligation to disclose trade secrets; in case of doubt, our right to protect trade secrets shall prevail).

3.4 Unless otherwise agreed or stated on the invoice, invoices are payable no later than thirty (30) days after the invoice date. Upon expiry of this period, the customer shall be in default without the need for any additional notice or reminder.

3.5 For amounts not paid on time, we will charge default interest at the statutory rate (currently 9 percentage points above the respective base interest rate of the European Central Bank per annum, Section 288 (2) BGB) as well as the flat-rate default charge pursuant to Section 288 (5) BGB (currently EUR 40). We expressly reserve the right to prove higher damages.

3.6 The customer is entitled to deduct a cash discount only if this has been separately agreed in writing or is stated on the invoice.

3.7 Set-off and/or the exercise of rights of retention by the customer is permissible only insofar as the counterclaim or right of retention has been finally adjudicated, is undisputed, or has been acknowledged by us in writing. In addition, a right of retention may be exercised only to the extent that the counterclaim is based on the same contractual relationship.

3.8 We accept bills of exchange and checks only on the basis of a special written agreement, free of costs and charges, in lieu of performance.

4. Delivery, transfer of risk, impediments to performance

4.1 Information on delivery periods and dates is approximate only, unless otherwise expressly agreed in writing. Delivery periods begin only after all execution details have been fully clarified and require the timely and proper fulfillment of the customer’s obligations. The customer may set us a reasonable grace period for delivery at the earliest 5 business days after expiry of such delivery periods/dates. We shall be in default only upon expiry of the grace period.

4.2 In case of doubt, the customer must make payment before delivery. Unless otherwise agreed, we may make the start of order execution dependent on an advance payment. If the advance payment is delayed, we are entitled to postpone delivery by the duration of the delay and a reasonable start-up period thereafter.

4.3 In the event of delay or impossibility, we shall be liable for claims for damages only in accordance with Clause 5 of these GTC. The delay damage to be compensated by us under Clause 5 of these GTC is limited to 0.5% of the value of the delivery or partial delivery not made on time for each completed week, but no more than 5% of the value of the delayed (partial) delivery.

4.4 Our delivery obligations are subject to correct and timely self-supply, unless we are responsible for incorrect or delayed self-supply. In the event of force majeure, such as operational disruptions, transport delays, measures in the context of labor disputes, as well as non-delivery, incorrect or delayed delivery by the supplier, and other impediments to performance for which we are not responsible, we may postpone delivery by the duration of the impediment and a reasonable start-up period thereafter.

4.5 If it is likely to be a permanent impediment, we are entitled to refuse delivery of the goods in whole or in part. We will inform the customer in writing or by email when such an event occurs. In this case, the customer shall have no claims for damages against us. The customer shall be released from providing the consideration. If and to the extent the customer has already provided it, it will be refunded.

4.6 We are entitled to make partial deliveries if the partial delivery can be used by the customer within the contractual purpose, delivery of the remaining ordered goods is ensured, and the customer does not incur significant additional effort or costs as a result (unless we agree to bear these costs).

4.7 If delivery on call-off is agreed, the call-offs must be made within three months after conclusion of the contract, unless otherwise agreed in writing. If the delivery is not called off in due time, Clause 4.9 of these GTC 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). Shipping and transport are always at the customer’s risk. The risk also passes to the customer in the case of partial deliveries as soon as the shipment has been handed over to the carrier—regardless of whether it is a person belonging to our company or a third party—or has left our plant for the purpose of dispatch, unless either Clause 4.9 of these GTC applies or otherwise agreed or stated on the delivery note or order confirmation (e.g. Incoterms).

4.9 If the customer refuses to accept the goods, if dispatch of the delivery is delayed for other reasons attributable to the customer, or if the customer is otherwise in default of acceptance, the risk of accidental loss of the goods passes to the customer (transfer of risk). All storage costs after the transfer of risk shall be borne by the customer. We charge storage costs at 0.5% of the invoice amount for each month, or alternatively the actual damage. The customer reserves the right to prove lower damages. After the unsuccessful expiry of a grace period of fourteen (14) days set for the customer, we are entitled to withdraw from the contract or to claim damages in lieu of performance.

4.10 Unless otherwise agreed in writing, we generally do not take back packaging material.

5. Warranty and liability

5.1 Delivered goods must be carefully inspected by the customer immediately upon arrival at the place of destination, even if samples or specimens were previously sent. In particular, the goods must be checked for their condition. If crates, cartons or other containers are delivered, random samples must be taken. The delivery shall be deemed 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 the goods arrive at the place of destination; or
– if the defect was not recognizable during the inspection (which the customer must prove), within one (1) week after discovery of the defect

5.2 The above notification obligation also applies to over-delivery and under-delivery as well as any incorrect deliveries.

5.3 Transport damage must be reported to the carrier immediately; in this respect, the notification obligations of the German Freight Forwarders’ Standard Terms and Conditions apply.

5.4 If a defect exists and has been reported in due time, we shall, at our discretion, provide subsequent performance within a reasonable period in the form of remedying the defect or delivering a defect-free item. If subsequent performance fails, the customer is entitled, at its discretion, to demand a reduction in price or to withdraw from the contract. However, there is no right of withdrawal if the defects are only minor. If, after failed subsequent performance, the customer chooses to withdraw from the contract, the customer shall have no claim for damages in addition with respect to the defect in question.

5.5 The above provisions conclusively set out the warranty for our goods. In particular, we shall be liable for any other claims for damages to which the customer may be entitled due to or in connection with defects in the delivered goods, regardless of the legal basis, exclusively in accordance with Clauses 5.7 to 5.11 of these GTC.

5.6 To the extent that we have declared a guarantee for the quality of an item (see Clause 2.3), we shall be liable in accordance with the statutory provisions.

5.7 For claims for damages due to culpable acts, regardless of the legal basis, including delay, defective delivery, breach of obligations arising from an obligation, breach of obligations during contract negotiations, tort, product liability (excluding liability under the Product Liability Act), we shall be liable—unless otherwise provided in Clause 5.8 of these GTC—only in cases of intent or gross negligence.

5.8 Liability for slight negligence is excluded unless it involves a breach of a material contractual obligation (cardinal obligation) or an injury to life, body or health. Personal liability of our legal representatives, vicarious agents and employees for damages caused by them through slight negligence is excluded; furthermore, the limitation under the above provisions also applies to them.

5.9 If the goods are traded goods that are not produced by us but merely resold by us, the customer is obliged, before asserting claims against us, to first pursue all possible claims against our upstream supplier. For this purpose, we undertake to assign to the customer any warranty and compensation claims to which we are entitled against our upstream suppliers. The customer is obliged to pursue the claims also in court. If recourse against our upstream supplier is unsuccessful, the customer is entitled to assert claims against us in accordance with Clauses 5.7, 5.8 and 5.10 of these GTC.

5.10 The customer’s warranty claims shall become time-barred within one year from delivery of the goods. The customer’s claims for damages based on liability for negligence shall become time-barred within one year from delivery of the goods. If the requirements for supplier recourse pursuant to Section 478 BGB are met, the statutory limitation period of Section 445b (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 is always carried out for us as the manufacturer within the meaning of Section 950 BGB, without any obligations arising for us as a result. Processed or transformed goods shall be deemed goods subject to retention of title pursuant to Clause 6.1 of these GTC. If the customer processes, combines or mixes the goods subject to retention of title with other goods not belonging to us to form a new item or a mixed stock, we shall be entitled to co-ownership thereof in the ratio of the invoice value of the goods subject to retention of title to the value of the other processed or mixed goods at the time of processing. The co-ownership share shall be deemed goods subject to retention of title pursuant to Clause 6.1 of these GTC.

6.3 If the goods subject to retention of title are combined or mixed with other goods and another item not belonging to us is 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 goods subject to retention of title to the value of the main item shall pass to us, and that the customer shall store the item for us free of charge. The co-ownership share shall be deemed goods subject to retention of title pursuant to Clause 6.1 of these GTC.

6.4 The customer is obliged to keep the goods subject to retention of title fully insured at all times against the usual risks and to provide us with evidence of this upon request. The customer hereby assigns to us any insurance claims (subject to a condition subsequent upon occurrence of the condition specified in Clause 6.1).

6.5 The customer shall store the goods subject to retention of title for us. Upon reasonable request, we must be permitted at any time to take an inventory and ensure sufficient labeling at the respective storage location. In the event of seizures or other impairments of our rights by third parties, the customer must immediately notify us in detail and support us in a reasonable manner in asserting our rights.

6.6 The customer is entitled to sell the goods in the ordinary course of business under its normal terms, provided that it ensures that its claims from resale pass to us in accordance with Clauses 6.7 to 6.9 of these GTC.

6.7 The customer hereby assigns to us, already now, all claims arising from the resale of the goods subject to retention of title, including in the context of contracts for work and services or contracts for the delivery of movable items to be manufactured or produced, together with all ancillary rights. The assignment is subject to a condition subsequent upon occurrence of the condition specified in Clause 6.1. The customer is entitled to assign the claims to third parties only with our prior written consent.

6.8 If the customer sells the goods subject to retention of title together with other goods not delivered by us, the assignment of the claim from resale shall apply only up to the amount of the invoice value of our goods subject to retention of title at the time of delivery. In the sale of goods in which we have co-ownership pursuant to Clause 6.2 or 6.3 of these GTC, the assignment of claims shall apply in 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, already now, a portion of the balance, including the final balance, from the current account corresponding in amount to this claim (subject to a condition subsequent upon occurrence of the condition specified in Clause 6.1).

6.10 The customer is entitled, until revoked, to collect claims from resales pursuant to Clauses 6.7 to 6.9 of these GTC. Our authority to collect the claim ourselves remains unaffected.

6.11 If the customer does not fulfill its obligations under this contract or other contracts with us, or does not do so on time, or if we become aware of circumstances that significantly reduce its creditworthiness, we are entitled
– to prohibit the resale, processing and modification of the goods subject to retention of title, as well as their mixing or combination with other goods;
– to withdraw from this contract and demand the immediate surrender of the goods subject to retention of title; we are then entitled to enter the customer’s premises and take possession of the goods subject to retention of title at the customer’s expense and, without prejudice to the customer’s payment and other obligations, to realize them in the best possible way by private sale or by auction; we will credit the proceeds of realization to the customer’s liabilities after deduction of costs incurred; we will pay out any surplus to the customer;
– to demand from the customer the immediate disclosure 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
– to disclose all assignments to third-party debtors, revoke the collection authorization granted, and collect the claims; all proceeds due to us from assignments must be forwarded to us immediately upon receipt as soon as our claims against the customer are due.

6.12 If the realizable value of the securities granted to us amounts to 110% (or more) of our total claims against the customer, we are obliged, at the customer’s request, to release or reassign corresponding securities; the selection of the securities is at our discretion.

6.13 In the event of default in payment, the customer is obliged, upon our first request, to immediately surrender the goods subject to retention of title to us.

7. Place of performance, applicable law, jurisdiction

7.1 The place of performance for all obligations under this contract is Witten, Germany.

7.2 This contract and all claims and legal relationships arising from it are governed by the laws of the Federal Republic of Germany, excluding private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).

7.3 Unless mandatory statutory provisions provide for an exclusive place of jurisdiction, the courts in Bochum (Germany) shall have exclusive jurisdiction for all disputes in connection with the business relationship with the customer. This jurisdiction agreement does not apply in relation to customers who are not merchants.

8. Final provisions

8.1 Amendments and additions to the contract concluded with the customer incorporating these GTC (hereinafter the “Contract”), including this written form clause, must be made in writing to be effective. The same applies to ancillary agreements and supplementary agreements.

8.2 The Contract does not create any rights for third parties (with the exception of Clause 5.8 sentence 2 of these GTC). The customer is not entitled to assign rights and claims under 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 all other provisions. In this case, the parties are obliged to replace the invalid provision with a legally valid provision that comes as close as legally permissible, in economic terms, to the regulatory purpose pursued by the invalid provision. The same applies to any gaps in the provisions.

8.4 In the event of discrepancies or doubts, the German version of these GTC shall prevail.