GENERAL TERMS AND CONDITIONS OF SALE OF FLAVOLOGIC GMBH

GENERAL TERMS AND CONDITIONS OF SALE OF FLAVOLOGIC GMBH, with its seat in Vaterstetten, Germany, registered with the commercial register at the local
court of Munich under HRB 194999, hereinafter referred to as "FlavoLogic".
1. GENERAL
1.1 All offers from and all orders to FlavoLogic
and all agreements, whether orally or in writing, and
including any amendments thereto (collectively
"Agreements") between FlavoLogic and a customer of
FlavoLogic (hereinafter: the "Customer") for the sale
and delivery of products are subject to these general
terms and conditions which are an integral part of the
Agreement. A “Customer” is defined as an entrepreneur
within the meaning of Sec. 14, German Civil Code or a
legal entity. Agreements are not binding on FlavoLogic
until the receipt by the Customer of a confirmation by
FlavoLogic which is signed by FlavoLogic.
1.2 The Customer may, in a respective Agreement,
invoke provisions that deviate from these general terms
and conditions herein or that waive or that otherwise
change any of the provisions in these general terms and
conditions only if and to the extent that FlavoLogic has
accepted such provisions, deviation, waiver, change or
contradiction in writing.
1.3 The Customer who has entered into an
Agreement with FlavoLogic upon which these general
terms and conditions are applicable, consents to the
applicability of these general terms and conditions to
Agreements concluded with FlavoLogic hereafter.
1.4 If for any reason any provision in these general
terms and conditions is held to be invalid, illegal or
unenforceable by any reason, the remainder shall remain
in full force and effect; an invalid, illegal or
unenforceable provision shall be deemed to be replaced
by a valid, legal and enforceable provision which most
closely achieves the economic purpose of the invalid,
illegal or unenforceable provision as far as possible.
1.5 Any omission or forbearance by the parties
with the enforcement of the correct and timely
compliance with the, specific or generic, terms and
conditions set forth herein, or with the exercise of any
privilege under these general terms and conditions, shall
not be considered a waiver or a novation, nor shall
prevent the parties from exercising such rights or
privileges in the future.
1.6 These general terms and conditions shall inure
to the benefit of and be binding upon the parties and their
respective successors and authorized assignees at any
title, which shall comply with all terms and conditions
set forth in these general terms and conditions.
2. PRICE
2.1 Unless expressly indicated or agreed otherwise,
the prices quoted or agreed upon by FlavoLogic shall be
net prices, exclusive of VAT and exclusive of any import
or export duties, costs of insurance, adequate packaging,
unloading, inspections, tests, certifications and the like,
and prices are only valid for delivery Ex Works
Incoterms (2020) as may be amended, at the location of
FlavoLogic. The prices are subject to adjustment for any
changes to the products or the specifications on which
the parties agreed or which are required by applicable
regulations or standards. Notwithstanding anything to
the contrary herein or in the Agreement, to the extent that
any particular Agreement provides that the prices
thereunder are inclusive of import duties, then (i) the rate
of such import duties shall be deemed to refer to and
reflect the rate of import duties known on the date on
which such particular Agreement is signed by
FlavoLogic and the respective Customer (hereinafter:
the "Known Import Duties Rate"); and (ii) to the extent
that, at any time after the date on which said particular
Agreement is signed by FlavoLogic and the respective
Customer, the rate of such import duties is increased
above the Known Import Duties Rate, then the prices
under such particular Agreement shall be adjusted
automatically so as to reflect the updated import duties
rate and the payment of the difference between the
Known Import Duties Rate and the updated import
duties rate shall be at the Customer’s sole expense and
responsibility.
3. DELIVERY AND DELIVERY TIME
3.1 Delivery takes place Ex Works Incoterms
(2020) as may be amended, Hiwa Rotterdam Port
Coldstore (or any other different warehouse indicated by
FlavoLogic whether orally or in writing) once
FlavoLogic or a third party on behalf of FlavoLogic has
the products ready to be loaded on the vehicle used for
transport. According to Ex Works Incoterms (2020), the
costs and the risk of cargo loading and transport will be
paid and borne solely by the Customer, even in the case
FlavoLogic is the party that organizes and/or directly
performs cargo loading and/or transport. In case of a
difference between these general terms and conditions
and the Incoterms (2020) as may be amended, these
general terms and conditions shall prevail.
Notwithstanding anything to the contrary herein or in the
Agreement, where products are delivered Delivered
Duty Paid (Incoterms (2020) as may be amended) then
(i) any costs of carrier's waiting times starting
immediately upon arrival of the products at their
designated location and up to 2 hours thereafter shall be
at FlavoLogic’s expense, while any costs, fines,
liabilities, expenses either (x) starting immediately upon
the lapse of the aforementioned 2 hours; and/or (z)
related to carrier’s waiting times being beyond the
aforementioned 2 hours, shall be at the Customer’s sole
cost and expense; and (ii) any costs, fines, liabilities,
expenses related to the carrier's cancellation on the
designated delivery day shall be at the Customer’s sole
cost and expense.
3.2 A failure to make a timely delivery shall in no
event entitle the Customer to additional or substitute
compensation or to non-compliance with any of its own
obligations arising from the Agreement. However, if the
failure to provide a timely delivery solely results from a
circumstance that can be reasonably attributed to
FlavoLogic and subsequently, if and insofar as
FlavoLogic still fails to deliver within a reasonable
period of time after the Customer has informed
FlavoLogic thereof in writing, the Customer shall be
entitled to terminate the Agreement by means of a
written statement.
3.3 FlavoLogic has the right to make partial
deliveries.
3.4 In the case FlavoLogic is unable to meet any
kind of agreed delivery deadlines for reasons beyond
FlavoLogic’s control, FlavoLogic shall inform the
Customer promptly and establish the expected new
delivery deadline. If FlavoLogic is unable to perform
also within the new delivery deadline, FlavoLogic is
entitled to rescind the Agreement in whole or in part; in
such case, any consideration already provided by the
Customer in relation to the undelivered products will be
reimbursed. In particular, a delay in delivery to
FlavoLogic from its suppliers shall be deemed an
inability to perform for the purposes of this section 3.4.
4. RISK AND TRANSFER OF OWNERSHIP
4.1 After the products have been delivered as per
Article 3.1, the products are for the Customer's sole
expense and risk.
4.2 If the Customer is not able to timely pick-up the
products in accordance with Article 3.1, for whatever
reason, such products are for the Customer's sole
expense and risk as of the moment that such products
were ready for transport or as of the moment the
Customer was informed that the products were ready to
be picked-up, whichever is earlier. As of that moment,
loading, dispatching or transport, unloading and insuring
such products shall be effected for the sole expense and
risk of the Customer.
4.3 The industrial or intellectual property rights to
or in connection with the delivered products or any
materials delivered in connection therewith, including
without limitation any product specification, formulation
produced or supplied, shall remain at all times
exclusively with FlavoLogic or with third party title
owners and shall in no event be transferred to the
Customer.
5. RETENTION OF TITLE
5.1 All products sold by FlavoLogic shall remain
the sole and exclusive property of FlavoLogic until the
Customer has paid in full all prices and other sums that it
owes to FlavoLogic for the products or otherwise in
connection with the underlying Agreement and/or in
connection with prior or subsequent Agreements of the
same nature, including, without limitation, payment
obligations, damages, costs, charges, expenses and
interest. If applicable laws do not allow the retention of
title, but allow FlavoLogic to reserve other security
rights, FlavoLogic may exercise these rights. The
Customer has no right of retention in respect of those
products.
5.2 The Customer will store products that have not
yet been fully paid for separately and in such a way that
they are recognizable as FlavoLogic’s property.
5.3 The Customer grants FlavoLogic an
irrevocable authority to: (i) take such measures which
are necessary to maintain the property rights to the
products by FlavoLogic, including, without limitation, to
take actions in the name and on behalf of the Customer,
and (ii) to enter any premises controlled by the Customer
to re-take possession of the products which are still
subject to the retention of title.
6. FORCE MAJEURE
6.1 FlavoLogic shall be entitled to invoke force
majeure if the implementation of the Agreement is, in
whole or in part, temporarily or not, prevented or
impeded by circumstances reasonably out of its control,
including (but not limited to): (a) acts of war or the
commencement or escalation of hostilities, (b)
pandemics, (c) site or building blockades, (d) fire, (e)
strikes, (f) faults on the part of suppliers, (g) stock
shortages, (h) price increases by suppliers, (i) delayed
delivery of parts, products or services by third parties to
FlavoLogic, (j) accidents and (k) interruptions of
business operations.
6.2 In the event of force majeure on the part of
FlavoLogic, its obligations are suspended, and if the
force majeure situation is not lifted within three months
after the occurrence hereof, both parties are entitled to
terminate the part of the Agreement that was not yet
fulfilled or can no longer be fulfilled by means of written
notice to the other party. In such case, neither the
Customer, nor third parties shall have a claim against
FlavoLogic for any compensation.
7. LIABILITY AND INDEMNIFICATION
7.1 The Customer shall promptly comply with its
inspection and defect notification duties according to
Sec. 377, German Commercial Code immediately on
receipt of the products. Any obvious defects to the
delivery shall immediately be reported back to the carrier
in writing on the bill of delivery or notified in writing to
FlavoLogic itself, as applicable. Any hidden defect shall
be notified within 5 days from discovery, by e-mail, fax
and/or in writing, giving full details of the alleged
complaint. If the Customer does not fulfill these
obligations, any damages which may result from such
defects shall be borne by the Customer. After said
timeframes, as applicable, any defects may no longer be
asserted. Any notice of defect shall be accompanied by
samples of the contested products.
7.2 The liability of FlavoLogic in connection with
the products or any defects of the products that it has
delivered is limited to (at FlavoLogic’s discretion)
replacement of or crediting the defective products.
7.3 FlavoLogic is not and shall not be, liable for
any damages (such as but not limited to substitute,
additional, consequential, direct damages or loss of
profits) other than as set out in Article 7.2.
7.4 The limitation of liability shall not apply if and
insofar as the damage suffered was inflicted
intentionally by or was the result of gross negligence of
FlavoLogic itself (and not any of its employees except
for any directors of FlavoLogic).
7.5 In all cases in which FlavoLogic is obligated to
pay compensation for damage, then the total sum of such
compensation to be paid shall in no event exceed, at
FlavoLogic's discretion, either the respective invoice
value of the products in connection with which the
damage was caused or, if the damage is covered by an
insurance of FlavoLogic, the amount which is actually
paid in the matter by the insurer.
7.6 If the products delivered by FlavoLogic are
trading goods that FlavoLogic has purchased from a
third-party supplier or subcontractor and resold to the
Customer, FlavoLogic has the right to assign to the
Customer any rights based on defects FlavoLogic itself
may have against the third-party supplier or
subcontractor and to demand the Customer to take action
against the third-party supplier or subcontractor, as the
case may be. In such case, FlavoLogic is liable for said
defects only if claims against the third-party supplier or
subcontractor cannot be enforced although they have
been promptly and timely asserted, also in court, where
applicable. Conditions that limit, exclude or establish
liability, or that can be invoked against FlavoLogic by
third-party suppliers or subcontractors in connection
with the products delivered, can also be invoked by
FlavoLogic against the Customer. With respect to the
products to be delivered, the Customer shall strictly
observe national and international governmental export,
import and user restrictions. The Customer shall and will
hold FlavoLogic harmless with respect to any damage
suffered by FlavoLogic as a result of any violation of
these restrictions.
7.7 Customer shall and will hold FlavoLogic
harmless against any claims of third parties related to the
performance of the Agreement.
8. PAYMENT AND SECURITY
8.1 Unless expressly agreed otherwise in writing in
the Agreement, payment shall be made in the currency
and within the payment term specified on the respective
invoice. In any case, FlavoLogic is at any time (an
ongoing business relationship included) entitled to make
a delivery/deliveries in whole or in part subject to
advanced payment or security to be provided by
Customer. FlavoLogic will provide a written notice of
such reservation, without a special form being required.
8.2 The Customer relinquishes any right to set-off
amounts. Claims do not suspend the obligations of the
Customer (including but not limited to the payment
obligations).
8.3 If Customer fails to pay any amount due
according to the Agreement, in particular if Customer
fails to honor a check, revokes or do not perform a
payment in a schema of distributed payments or
discontinues such payments, or if FlavoLogic learns of
any other circumstances that raise doubts in relation to
the Customer's credit standing, FlavoLogic is entitled to
demand immediate payment of the remaining due
amount.
8.4 If the Customer fails to pay any amount due in a
timely manner, the Customer shall be in default without
the need of a prior notice of default by FlavoLogic. As
from the day following the payment due date, overdue
payment interest at 1% of the outstanding amount per
month shall be due for any part of a month during which
the default continues. In relation to merchants,
FlavoLogic’s claim to commercial default interest
according to Sec. 353 German Commercial Code shall
remain unaffected. In general, FlavoLogic reserves the
right to assert any claims on grounds of further damage
caused by Customer’s default.
8.5 All judicial and extrajudicial costs incurred by
FlavoLogic as a result of the Customer being in default
shall be paid by the Customer. The extrajudicial costs are
deemed to amount to at least 15% of the amount which is
claimed, with a minimum of € 250.
9. TERMINATION
9.1 In the event the Customer (i) fails to partially or
entirely perform one or more of its obligations, or fails to
do so in a timely or proper manner; or (ii) files for, or has
bankruptcy, receivership, judicial or extrajudicial
recovery filed or declared against it; or (iii) requests a
permanent or temporary suspension of payments; or (iv)
proceeds to liquidate its company (or similar event), as
well as if its assets are seized in part or in their entirety,
then FlavoLogic shall be entitled to suspend the
implementation of the Agreement or to terminate the
Agreement with immediate effect, in part or in its
entirety, by means of a written statement without the
need of a prior notice of default by FlavoLogic, at its sole
discretion, and always without prejudice to any other
rights to which it is entitled to compensation of costs,
damages, expenses and interest etc'.
9.2 The Customer shall only be entitled to
terminate the Agreement by means of a written statement
in the events described in Article 3.2 and 6.2 and in any
event only after the full payment to FlavoLogic of all
outstanding amounts at that time, including, without
limitation, any payment obligations, damages, costs,
charges, expenses and interest, whether or not due.
9.3 Expiration or termination of the Agreement for
whatever reason shall not prejudice the provisions of
these general terms and conditions, which, by their
nature, must be deemed to survive such expiration or
termination, including but not limited to Article 7 and
10.
10. DISPUTES AND APPLICABLE LAW
10.1 All disputes between the parties relating to the
Agreement, further contracts resulting therefrom or in
connection therewith shall: (a) be exclusively submitted
to the German jurisdiction, competent court in Munich
for Customers residing within the European Union, or
(b) for any other Customers - be finally settled in
accordance with the Arbitration Rules of the German
Institution of Arbitration e.V. (DIS) , including the
Supplementary Rules for Expedited Proceedings by one
arbitrator, in the English language with the arbitration
seat in Munich.
10.2 All agreements between FlavoLogic and the
Customer, including, without limitation, these general
terms and conditions, are subject to German law, without
regard to the applicable conflict of law rules and any
international/supranational treaties. The stipulations
specified in the Convention of International Sale of
Goods of 11 April 1980 are not applicable.