§ 1 Scope, Form
1.1 These General Terms and Conditions of Sale (“GTCS“) shall apply to all business relations between Pure Flavour GmbH and our customers (“Purchaser“). The GCS apply only if the Purchaser is an entrepreneur (§ 14 of the German Civil Code; Bürgerliches Gesetzbuch, hereinafter “BGB”), a legal entity under public law or a special fund under public law.
The contractual partner for all orders is
Pure Flavour GmbH
Landsberger Straße 318d
80687 Munich
Germany
Phone: +49(0)89 / 904 206 – 0
Customer service: +49(0)89 / 904 206 – 820
Fax: +49(0)89 / 904 206 – 199
E-Mail: info@pure-flavours.com
Headquarters of the company is Munich
Local Court Munich – HRB 219070
Managing Director: Dominik Guber
1.2 The GTCS apply in particular to contracts for the sale and/or delivery of movable Goods (“Goods“), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Purchaser’s order or, in any case, in the version last notified to the Purchaser in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Purchaser shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Purchaser refers to its General Terms and Conditions within the scope of the order and we do not expressly object thereto.
1.4 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation shall take precedence over the GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
1.5 Legally relevant declarations and notifications of the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing. Written form in the sense of these GTCS includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.6 References to the applicability of statutory provisions shall only be of a clarifying nature. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
2.1 Our offers are subject to change and non-binding. This shall also apply if we have provided the Purchaser with catalogues, technical documentation (e.g. references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights. The presentation of the Goods in our online store does not constitute a legally binding offer, but merely an invitation to submit an offer by the Purchaser. The description of the Goods does not constitute a guarantee of quality or an agreement on quality, unless it is the typical quality of the Goods.
2.2 The order of the Goods by the Purchaser is considered a binding offer of contract. When you place an order with us, we will send you an e-mail confirming that we have received your order, and listing its details (“Order Confirmation”). The Order Confirmation does not initially represent an acceptance of your offer, but is only intended to inform you that we have received your order.
2.3 Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 10 days of its receipt by us.
2.4 Acceptance may be declared either in writing (e.g. by Order Confirmation) or by delivery of the Goods to the Purchaser.
§ 3 Delivery period
3.1 Subject to stock, the order will be shipped to the customer immediately after receipt of payment. If the Goods are not in stock, the expected delivery period will be agreed individually or stated by us in the Order Confirmation or in a separate communication.
3.2 If we are unable to comply with the stated delivery period for reasons for which we are not responsible (non-availability of supply), we shall inform the Purchaser of this without delay and at the same time inform him of the expected new delivery period. If the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Purchaser. Non-availability of the performance shall be deemed to exist, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obligated to procure in the individual case.
3.3 The occurrence of our default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Purchaser shall be required. If we are in default of delivery, the Purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Purchaser has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
3.4 The rights of the Purchaser pursuant to § 9 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
4.1 Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Purchaser’s request and expense, the Goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Delivery shall expressly be made only after receipt of payment of the total amount.
4.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Purchaser at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Purchaser is in default of acceptance.
4.3 If the Purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump sum compensation in the amount of EUR per calendar day, starting with the indication of the delivery period or – in the absence of a notification to this effect – with the notification that the Goods are ready for shipment.
4.4 The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The Purchaser shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
§ 5 Prices and Terms of Payment
5.1 Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
5.2 In the case of a sale by delivery to a place other than the place of performance (§ 4 para. 1), the Purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Purchaser. The Purchaser will be informed of the shipping costs in the order confirmation or shipping notification. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.
5.3 The purchase price is due and payable within 10 days from the date of invoice and delivery or acceptance of the Goods. However, we shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
5.4 Upon expiry of the aforementioned payment period, the Purchaser shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial maturity interest (§ 353 of the German Commercial Code; Handelsgesetzbuch, hereinafter “HGB”) shall remain unaffected.
5.5 The Purchaser shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Purchaser’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTCS.
5.6 If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Purchaser’s insolvency, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible Goods (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
6.1 We reserve title to the Goods sold until full payment of all our present and future claims arising from the respective order and an ongoing business relationship.
6.2 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 Purchaser must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the Goods belonging to us.
6.3 In the event of conduct by the Purchaser in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the Goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the Goods and to reserve the right of withdrawal. If the Purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the Purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
6.4 Until revoked in accordance with (c) below, the Purchaser shall be entitled to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
6.4.1 The retention of title shall extend to the products resulting from the processing, mixing or combining of our Goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. Otherwise, the same shall apply to the resulting product as to the Goods delivered under retention of title.
6.4.2 The Purchaser hereby assigns to us by way of security all claims against third parties arising from the resale of the Goods or the product in total or in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the Purchaser specified in para. 2 shall also apply in respect of the assigned claims.
6.4.3 The Purchaser shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the Purchaser inform us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the Purchaser’s authorization to further sell and process the Goods subject to retention of title.
6.4.4 If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Purchaser’s request.
§ 7 Resale
The commercial resale of our products is prohibited unless otherwise agreed with us in writing. With regard to a violation of this provision, we reserve all rights and claims, in particular the assertion of claims for damages. Insofar as the Purchaser has acquired the products delivered by us within the scope of our “Private Label” offer (acquisition of Finished Products under the Purchaser’s own brand in the form of Private Label, White Label, Contract Manufacturing or Toll Manufacturing services), this § 7 shall not apply.
§ 8 Claims for defects of the Purchaser
8.1 The statutory provisions shall apply to the Purchaser’s rights in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below. In all cases, the statutory provisions on the sale of consumer Goods (§§ 474 et seq. BGB) and the rights of the Purchaser arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
8.2 The basis of our liability for defects shall be, above all, the agreement reached on the quality and the presumed use of the Goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. As far as the quality was not agreed upon, it is to be judged according to the legal regulation whether a lack is present or not (§ 434 para. 3 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.
8.3 In general, we shall not be liable for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Purchaser’s claims for defects shall require that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of Goods intended for further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within 5 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the Purchaser fails to properly inspect the Goods and/or notify us of defects, our liability for the defect not notified in time or not properly notified shall be excluded in accordance with the statutory provisions. In the case of Goods intended for processing, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the Purchaser shall in particular have no claims for compensation for corresponding costs.
8.4 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect () or by delivering an item free of defects If the type of subsequent performance chosen by us is unreasonable for the Purchaser in the individual case, the Purchaser may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
8.5 We shall be entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
8.6 The Purchaser shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the Goods complained about for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to us at our request in accordance with the statutory provisions; however, the Purchaser shall not have a claim for return.
8.7 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions and these GTCS, if a defect is actually present. Otherwise, we may demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request to remedy the defect if the Purchaser knew or could have known that there was actually no defect.
8.8 In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Purchaser shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
8.9 If a reasonable period to be set by the Purchaser for subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there shall be no right of withdrawal.
8.10 Claims of the Purchaser for reimbursement of expenses according to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer Goods purchase (§§ 478, 474 BGB). Claims of the Purchaser for damages or reimbursement of futile expenses (§ 284 BGB) shall also exist in case of defects of the Goods only in accordance with the following §§ 9 and 10.
§ 9 Further liability
9.1 Insofar as nothing to the contrary arises from these GTCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
9.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
9.2.1 for damages resulting from injury to life, body or health,
9.2.2 for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed and for claims of the Purchaser under the German Product Liability Act
9.4 The Purchaser may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the Purchaser (in particular pursuant to §§ 650, 648 BGB) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Statute of Limitations
10.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
10.2 The above limitation period of the law on sales shall also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the Purchaser pursuant to § 8 para. 2 sentence 1 and sentence 2 (a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
§ 11 Choice of Law and Place of Jurisdiction
11.1 The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between us and the Purchaser to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.2 If the Purchaser 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 shall be our registered office in Munich. The same shall apply if the Purchaser is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the Purchaser. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
Pure Flavour GmbH, 11th April 2023