GENERAL TERMS & CONDITIONS (GTC)

§ 1 Scope of Application, Form

(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). The GTCS apply only if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.

(2) The GTCS particularly apply to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTCS also serve as a framework agreement for similar future contracts in the version applicable at the time of the Buyer’s order, or at least in the version last communicated to the Buyer in text form, without us having to reference them again in each individual case.

(3) Our GTCS apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the Buyer only become part of the contract if we have expressly agreed to their application. This consent requirement applies in all cases, for example, even if we carry out delivery to the Buyer unconditionally while being aware of the Buyer’s general terms and conditions.

(4) Individually agreed terms made with the Buyer in individual cases (including collateral agreements, supplements, and amendments) take precedence over these GTCS in every case. For the content of such agreements, a written contract or our written confirmation is decisive, subject to contrary evidence.

(5) Legally relevant declarations and notifications by the Buyer regarding the contract (e.g., setting deadlines, reporting defects, withdrawal, or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Statutory formal requirements and further proof, particularly in cases of doubt about the authority of the declarant, remain unaffected.

(6) References to the validity of statutory provisions are only for clarification. Therefore, even without such clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these GTCS.

§ 2 Conclusion of Contract

(1) Our offers are non-binding and without obligation. This applies even if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions, or documents – even in electronic form – in which we reserve ownership and copyright.

(2) The Buyer’s order of the Goods constitutes a binding offer to contract. Unless otherwise stated in the order, we are entitled to accept this contract offer within fourteen days of receiving it.

(3) Acceptance can be declared either in writing (e.g., by order confirmation) or by delivering the Goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period is individually agreed or specified by us upon acceptance of the order. If no specific delivery period is stated, it shall be approximately six weeks from the conclusion of the contract.

(2) If we are unable to meet binding delivery deadlines due to circumstances beyond our control (non-availability of performance), we will immediately inform the Buyer and simultaneously communicate the anticipated new delivery period. If performance is also unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any payment already made by the Buyer. Non-availability of performance in this sense particularly includes delayed self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault, or if we are not obliged to procure in the individual case.

(3) Our liability for delay in delivery is determined according to statutory provisions. In any case, a reminder from the Buyer is required. If we are in default of delivery, the Buyer can demand compensation for the delay. The compensation for each full calendar week of delay is 0.5% of the net price (delivery value), but not more than 5% of the delivery value of the delayed Goods. We reserve the right to prove that the Buyer has suffered no or only a significantly lower damage than the above-mentioned flat rate.

(4) The Buyer’s rights according to § 8 of these GTCS and our statutory rights, particularly in case of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery is made from the warehouse (Incoterms 2010; ExWorks), which is also the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods can be shipped to another destination (shipment purchase) (Incoterms 2010; DAP). Unless otherwise agreed, we are entitled to determine the type of shipment (particularly the transport company, shipping method, packaging).

(2) The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the Goods and the risk of delay passes already upon delivery of the Goods to the carrier, freight forwarder, or other person or institution designated to perform the shipment. If an acceptance is agreed upon, this is decisive for the transfer of risk. In other respects, the statutory provisions of the law on contracts for work and services apply to an agreed acceptance. It is equivalent to handover or acceptance if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this purpose, we charge a lump-sum compensation of 300.00 EUR per calendar day, starting from the delivery period or – if there is no delivery period – from the notification of the shipment readiness of the Goods.

Evidence of a higher damage and our statutory claims (particularly for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be credited against further monetary claims. The Buyer is allowed to prove that we have incurred no or only a significantly lower damage than the above-mentioned flat rate.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in individual cases, our prices current at the time of the conclusion of the contract apply, ex warehouse, plus statutory VAT.

(2) In the case of a shipment purchase (§ 4 para. 1), the Buyer bears the transport costs from the warehouse and the costs of any transport insurance desired by the Buyer. If we do not invoice the actual transport costs incurred in individual cases, a flat transport fee (excluding transport insurance) of 20% of the value of the Goods is agreed. Any duties, fees, taxes, and other public charges are borne by the Buyer.

(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, we are entitled to require payment in advance for all or part of the delivery, even within an ongoing business relationship. We declare such a reservation at the latest with the order confirmation.

(4) If the above payment period expires, the Buyer is in default. The purchase price shall bear interest during the default at the statutory default interest rate applicable at that time. We reserve the right to assert further damages caused by delay. Our claim to commercial default interest (§ 353 HGB) against merchants remains unaffected.

(5) The Buyer has offsetting or retention rights only to the extent that their claim has been legally established or is undisputed. In the event of defects in delivery, the Buyer’s counter-rights, particularly pursuant to § 7 para. 6 sentence 2 of these GTCS, remain unaffected.

(6) If it becomes apparent after the conclusion of the contract (e.g., through an application to open insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s lack of ability to perform, we are entitled to refuse performance in accordance with statutory provisions and – if applicable, after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1) Until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been fully paid, we retain title to the Goods sold.

(2) The Goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or insofar as third parties (e.g., seizures) access the Goods belonging to us.

(3) In the event of a breach of contract by the Buyer, particularly in the case of non-payment of the due purchase price, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the Goods on the basis of the retention of title. A demand for return does not simultaneously constitute a declaration of withdrawal; we are instead entitled to demand only the return of the Goods and reserve the right to withdraw. If the Buyer fails to pay the due purchase price, we may exercise these rights only if we have previously set the Buyer a reasonable period for payment without success or if setting such a period is dispensable according to statutory provisions.

(4) The Buyer is authorized, subject to revocation according to (c) below, to resell and/or process the Goods under retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally:

(a) The retention of title extends to the products resulting from the processing, mixing, or combining of our Goods at their full value, with us being considered the manufacturer. If, in the case of processing, mixing, or combining with Goods of third parties, their ownership rights remain intact, we acquire co-ownership in the ratio of the invoice values of the processed, mixed, or combined Goods. In all other respects, the same applies to the resulting product as to the Goods delivered under retention of title.

(b) The Buyer hereby assigns to us, by way of security, any claims against third parties arising from the resale of the Goods or the product, either in full or in the amount of our co-ownership share according to the preceding paragraph. We accept the assignment. The Buyer’s obligations under paragraph 2 also apply to the assigned claims.

(c) The Buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets its payment obligations to us, does not exhibit any inability to perform, and we do not assert the retention of title by exercising a right according to paragraph 3. However, if this is the case, we may demand that the Buyer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the Buyer’s authorization to further sell and process the Goods under retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice upon the Buyer’s request.

§ 7 Buyer’s Claims for Defects

(1) The Buyer’s rights regarding material and legal defects (including incorrect and short delivery, as well as improper manufacturing or defective mixture ratios) are governed by statutory provisions, unless otherwise specified below. In all cases, the special statutory provisions remain unaffected for the final delivery of unprocessed Goods to a consumer, even if the consumer has further processed them (supplier recourse under §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective Goods were further processed by the Buyer or another entrepreneur, e.g., through incorporation into another product.

(2) The basis of our liability for defects is, above all, the agreement reached on the quality of the Goods. All product descriptions and manufacturer specifications that are the subject of the individual contract or were publicly disclosed by us (especially in catalogs or on our website) at the time of the conclusion of the contract are deemed to constitute an agreement on the quality of the Goods.

(3) If the quality has not been agreed upon, whether or not there is a defect is to be determined according to statutory provisions (§ 434 para. 1 sentence 2 and 3 BGB). However, we do not assume liability for public statements made by the manufacturer or other third parties (e.g., advertising statements) that the Buyer has not indicated as decisive for their purchase decision.

(4) We are generally not liable for defects that the Buyer knows about at the time of contract conclusion or that the Buyer grossly negligently fails to recognize (§ 442 BGB). Additionally, the Buyer’s claims for defects are contingent on their compliance with statutory inspection and notification obligations (§§ 377, 381 HGB). For flavorings, raw materials, and other Goods intended for further processing, an inspection must be conducted in any case immediately before processing. If a defect becomes apparent during delivery, inspection, or at any later time, we must be notified in writing without delay. In any case, obvious defects must be reported in writing within two business days of delivery, and defects not detectable during inspection must be reported within the same period from discovery. If the Buyer fails to properly inspect and/or notify us of a defect, our liability for the unreported or untimely or improperly reported defect is excluded under statutory provisions.

(5) If the delivered item is defective, we may initially choose whether to remedy the defect by repair (rectification) or by delivering a non-defective item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected. 

(6) We are entitled to make the owed subsequent performance dependent on the Buyer’s payment of the due purchase price. However, the Buyer is entitled to retain a portion of the purchase price that is proportionate to the defect.

(7) The Buyer must provide us with the time and opportunity necessary for the required subsequent performance, particularly by submitting the rejected Goods for inspection purposes. In the case of a replacement delivery, the Buyer must return the defective item to us according to statutory provisions. The subsequent performance does not include the removal of the defective item or its re-installation if we were not originally obligated to install it.

(8) We bear or reimburse the expenses required for inspection and subsequent performance, particularly transport, travel, labor, and material costs, as well as any removal and installation costs, in accordance with statutory regulations, if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs incurred from the unjustified demand for defect removal (especially inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.

(9) In urgent cases, such as endangering operational safety or to prevent disproportionate damage, the Buyer has the right to remedy the defect themselves and demand reimbursement from us for the objectively necessary expenses incurred. We must be notified of such self-remedy immediately, if possible, in advance. The right to self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance under statutory provisions.

(10) If the subsequent performance fails, or if a reasonable period set by the Buyer for subsequent performance expires unsuccessfully or is dispensable under statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect. 

(11) The Buyer’s claims for damages or reimbursement of futile expenses exist in the case of defects only in accordance with § 8 and are otherwise excluded.

§ 8 Other Liability

(1) Unless otherwise stipulated in these General Terms and Conditions (GTC), including the provisions below, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

(2) We are liable for damages—regardless of the legal basis—within the scope of fault-based liability for intent and gross negligence. In cases of simple negligence, we are liable, subject to statutory limitations on liability (e.g., care in our own affairs; insignificant breach of duty), only

a) for damages resulting from injury to life, body, or health,

b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on which the contracting party regularly relies and may rely); in this case, however, our liability is limited to the compensation of foreseeable, typically occurring damage.

(3) The limitations of liability arising from paragraph 2 also apply to third parties as well as to breaches of duty by persons (including for their benefit) for whose fault we are responsible under statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed, nor to claims of the Buyer under the Product Liability Act.

(4) For a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. The Buyer’s unrestricted right to terminate (particularly according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

§ 9 Limitation Period

(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. Where acceptance has been agreed upon, the limitation period begins upon acceptance.

(2) If the Goods are a building or an item that has been used for a building in accordance with its usual use and has caused its defectiveness (construction material), the limitation period is five years from delivery, in accordance with statutory regulation (§ 438 para. 1 no. 2 BGB). Further statutory special provisions on limitation periods (particularly § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) remain unaffected.

(3) The aforementioned limitation periods of purchase law also apply to the Buyer’s contractual and non-contractual claims for damages based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in an individual case. The Buyer’s claims for damages according to § 8 para. 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act are subject exclusively to the statutory limitation periods.

§ 10 Choice of Law and Jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the Buyer, to the exclusion of international uniform law, in particular the UN Sales Convention.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive—also international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our business location at UFG United Flavours GmbH in Brook 1, 20457 Hamburg, Germany. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation according to these GTC or a prevailing individual agreement or at the general place of jurisdiction of the Buyer. Priority statutory provisions, in particular those concerning exclusive jurisdictions, remain unaffected.

UFG United Flavours GmbH, 2024