Conditions
General Terms and Conditions of Sale and Delivery of alphacaps GmbH for Use in International Commercial Transactions
Version: July 2023
Preamble
alphacaps GmbH, Ostring 10, 32832 Augustdorf, AG
Lemgo, HRB 4975 (hereinafter: alphacaps), produces cap
sules, tablets, powders, liquids, functional bars, and die
tary supplements as well as animal feed in various formu
lations and formats. Furthermore, alphacaps manufac
tures products according to its customers' specific recipes
and according to recipes developed by alphacaps based on
customer specifications (hereinafter: the Goods).
1. Scope
(1) These General Terms and Conditions of Sale and Delivery
(hereinafter: GTC) apply to commercial transactions for
deliveries and services by alphacaps within the Federal Re
public of Germany and beyond.
(2) Deliveries and services by alphacaps are exclusively gov
erned by these GTC. Conditions to the contrary, or addi
tional conditions, especially the purchase conditions of
the customer, shall only apply if alphacaps has expressly
agreed to them ; text form shall not replace the written
form in this regard.
2. Customer's Duties to Cooperate
(1) Alphacaps shall not guarantee the promotion or fulfilment
of the purpose of the goods pursued by the customer. Any
advice provided by alphacaps is based on past experience
and only constitutes non-binding recommendations; this
shall not release the customer from his duty to proof
whether the Goods are suitable for their intended purpose.
(2) The customer provides alphacaps with the legal require
ments for the labelling and packaging of the Goods and all
information relevant for the production order. The sole
responsibility for the declaration of product, advertising,
and presentation of the Goods lies with the customer. The
customer guarantees compliance with applicable general
and specific food law, labelling, and advertising laws re
garding the contractual Goods. Deviating agreements,
such as indicating alphacaps as an additional manufac
turer on the label, require a prior written agreement in
particular cases. If alphacaps shall be held liable by third
parties due to non- compliance of labelling obligations, the
customer shall indemnify alphacaps unless the defect was
caused by alphacaps according to Sections 8 and 9 of these
GTC.
(3) The application, use, and any further processing of the
Goods is performed beyond outside alphacaps' control
and responsibility. The customer shall be responsible for
all associated testing (such as marketability tests, product
labelling, regulatory notifications) at their own expense.
(4) If customer cooperation is necessary for the production of
the Goods and the customer fails to fulfil this obligation,
alphacaps shall be entitled to withdraw from the contract
if alphacaps has unsuccessfully requested the customer to
cooperate within a reasonable period appropriate to the
individual case. Alphacaps' right to claim damages remains
unaffected.
3. Quotations and Contract Conclusion
(1) Quotations submitted by alphacaps are without engage
ment and subject to change and represent a request to the
customer to place orders unless alphacaps expressly des
ignates them as binding.
(2) alphacaps produces the Goods in compliance with the legal
requirements applicable in the Federal Republic of Ger
many, particularly according to the German Food and Feed
Code (LFGB) and the EU food law regulations. If the cus
tomer markets the Goods abroad, alphacaps shall not be
liable for the conformity of the Goods with the regulations
of the destination country. The customer must explicitly
indicate any specific requirements for the Goods beyond
the scope of sentence 1 in writing when placing their order.
(3) Alphacaps shall be entitled to change the product specifi
cation (especially composition, raw materials) if this is nec
essary due to legal requirements or if the quality and usa
bility of the Goods for the contractual purpose are not im
paired.
(4) Unless otherwise expressly agreed, alphacaps reserves a
10-business day acceptance period (Monday to Friday)
from receipt of the customer's order (§ 147 BGB).
(5) A contract between alphacaps and the customer is only
concluded after written order confirmation by alphacaps.
(6) Subsidiary agreements or amendments that go beyond or
deviate from the written order confirmation from alpha
caps shall be only valid if made by an authorized person.
Authorized persons in this sense , apart from managing
directors and proxies are general representatives.
(7) If the customer communicates changes to the product re
quirements/specifications for a specific contractual prod
uct to alphacaps after sending the order confirmation (so
called subsequent changes), the customer bears the re
sulting additional costs, at least the administrative fee of a
lump-sum of 250 EUR net. The administrative fee shall be
charged for each further subsequent change. Subsequent
changes may extend the original delivery period, which
shall be communicated to the customer in the confirma
tion of the subsequent change. Alphacaps reserves the
right to reject subsequent changes.
4. Prices, Payment Terms
(1) The prices listed in the order confirmation apply. Any dis
count (skonto) is subject to the payment terms specified
in the order confirmation. The customer is only entitled to
part- performance in the case of partial deliveries.
(2) All prices are quoted in euros and net, including packaging
costs, plus the applicable VAT. The prices are based on FCA
(Incoterms 2020).
(3) Unless otherwise agreed, the purchase price is due within
30 days from the invoice date. After the expiration of the
period, the customer is in default without further notice.
(4) If the customer defaults on the payment of the purchase
price, existing claims from other contracts become imme
diately due. Furthermore, alphacaps shall be entitled to
demand the return of the Goods and/or without setting a
deadline to terminate the contract.
(5) The customer must promptly review the invoice. If the cus
tomer does not raise objections within 10 business days of
receiving the invoice, the invoice is considered accepted.
(6) alphacaps reserves the right to increase prices after the
conclusion of the contract, if necessary costs (especially
for production, materials, and personnel) subsequently in
crease, and alphacaps is not responsible for this. Alpha
caps shall inform the customer of the price increase with
out delay.
(7) If the Goods are defective, the customer has a retaining
lien regarding the purchase price to the extent that this is
in reasonable proportion to the defect.
(8) The set- off claim by the customer against the purchase
price to be paid shall only be permissible for an indisputa
ble and final claim alphacaps confirmed.
5. Deliveries
(1) alphacaps is entitled to make partial deliveries unless this
is unreasonable for the customer.
(2) If and to the extent customary in the trade and necessary
for production reasons, alphacaps is entitled to deliver in
increase or a shortage of up to 10% of the agreed delivery
quantity. The total price is adjusted accordingly in case of
over-deliveries and under-deliveries so that the unit price
per unit remains unchanged.
(3) Full and timely self-supply of raw materials is reserved. Al
phacaps shall be entitled to (partially) withdraw from the
contract if a lack of self-supply leads to delivery failure to
the customer, and alphacaps is not responsible for this.
(4) If the customer is supplied under a successive delivery con
tract, alphacaps is entitled to refuse to supply the cus
tomer if and if the agreed credit line is reached by the cus
tomer's last order (§ 320 BGB).
6. Delivery Deadlines, Delay, Consequences of Default
(1) Delivery deadlines specified in the order confirmation are
non-binding (approximate deadlines) unless otherwise
expressly agreed. Binding delivery deadlines are explicitly
designated as such in the order confirmation.
(2) If a binding delivery date is agreed and alphacaps is culpa
bly in delay with the delivery, the customer shall grant an
appropriate grace period. An appropriate period is regu
larly two weeks. If alphacaps does not deliver even after
the grace period expires, the customer is entitled to with
draw from the contract due to the non-delivery. The cus
tomer's right to claim damages in addition to withdrawal
remains unaffected.
(3) Delivery deadlines shall start no earlier than by sending the
order confirmation, but not before the customer has fully
provided the information required for the contract execu
tion and necessary duties to cooperate of the customer.
(4) If delivery is delayed due to events beyond alphacaps' con
trol, the agreed delivery period shall be extended by the
duration of the event plus a reasonable time for the pro
duction process to initialise (so-called lead time). If the
event lasts more than 6 weeks from the agreed delivery
date, each party is entitled to withdraw from the purchase
contract in whole or in part. Further claims of the parties
are excluded. An event as defined in sentence 1 occurs in
the case of non-delivery or untimely delivery by our raw
material suppliers, force majeure, raw material shortages,
delays or failures due to strikes, delays or failures due to
pandemics, transport delays, and operational disruptions
not attributable to alphacaps.
(5) If the customer is in default of acceptance of the Goods for
more than two weeks, alphacaps is entitled to charge local
storage fees per month. The assertion of further claims for
damages remains unaffected.
7. Shipping, Transfer of Risk
Deliveries are made FCA Ostring 10, 32832 Augustdorf or
FCA Imkerweg 19c, 32832 Augustdorf, (INCOTERMS 2020).
The delivery location is specified by the customer when or
dering and confirmed by alphacaps in the order confirma
tion. Before final shipping (after notification of completion
of the Goods by alphacaps), the customer has the option
to change the delivery location by notifying alphacaps
within two business days in written or text form.
8. Warranty of Defects, Liability
(1) The scope and characteristics of the goods are determined
by the product requirements/specifications provided by
the customer and the corresponding order confirmation
by alphacaps. There are no further explicit or implied war
ranties regarding the products, except for separate agree
ments, insofar as these exist with the customer and have
been agreed upon in writing by authorized persons (No.
3.7.).
(2) In the absence of explicit deviating agreements, alphacaps
does not guarantee that the goods are suitable for the cus
tomer's intended purpose. The customer is solely respon
sible for meeting the legal requirements for placing the
goods on the market, especially for the lawful label
ling/presentation/advertising of the goods.
(3) The assertion of warranty claims is excluded if the goods
are damaged due to improper transport by the customer
or improper storage by the customer, or due to normal ag
ing processes. If the customer does not notify alphacaps of
a defect immediately upon delivery, it is presumed that
the defect occurred after delivery; the goods are then
deemed approved. "Immediately" means no later than
one working day from the time of delivery. In the case of
hidden defects, the time of discovery of the defect is deci
sive instead of the time of delivery. Additionally, § 377 of
the German Commercial Code (HGB) applies.
(4) The customer is not entitled to assert defect claims if the
goods only slightly deviate from the agreed quality or if the
usability of the goods is only insignificantly impaired.
(5) If the customer raises a complaint without justification, the
customer shall reimburse alphacaps for the expenses in
curred in examining the defect, including any transport
and packaging costs. Further claims remain unaffected.
9. Liability Claims
(1) Alphacaps shall be liable to the customer only for culpable
violations of essential contractual obligations. The liability
is limited to the damage that alphacaps typically had to ex
pect at the time of contract conclusion. This is usually
based on the value of the defective goods to be delivered.
alphacaps is not liable for consequential damages, pure
pecuniary losses, or lost profits of the customer.
(2) The limitation of liability in paragraph 1 does not apply (a)
to intentional and grossly negligent actions by alphacaps
or its representatives or vicarious agents, (b) to culpable
injury to life, body, or health, (c) to liability under the Prod
uct Liability Act, (d) in case of fraudulent concealment of a
defect in the goods, or (e) in case of assumption of a war
ranty for the quality of the goods.
10. Limitation Period
(1) Customer rights due to defects in the goods expire within
one year. The limitation period in sentence 1 does not ap
ply (a) to the customer's recourse claim in the event that
the final purchaser is a consumer (§ 13 BGB); (b) in cases
of intent, fraudulent concealment of a defect, or an as
sumption of warranty by alphacaps for the quality of the
goods, (c) for claims for damages due to grossly negligent
breaches of duty, due to culpable – not consisting in the
delivery of defective goods – breaches of essential con
tractual obligations, due to culpable injury to life, body, or
health, and due to claims under the Product Liability Act.
(2) The provisions in paragraph 1 apply accordingly to claims
for damages and compensation for futile expenses that
are not related to a defect in the delivered goods.
(3) The limitation period shall begin in cases of paragraph 1
upon delivery of the goods, and in cases of paragraph 2
upon customer´s knowledge or ought to have known
about the circumstances giving rise to the claim.
11. Customer's Right of cancellation
(1) The customer may rescind the contract within the scope of
statutory provisions only if alphacaps is responsible for the
breach of duty; the right of cancellation due to force
majeure under No. 6 para. 4 remains unaffected. If the
customer claims that alphacaps has infringed a contractual
obligation, the customer shall declare within a reasonable
period upon request by alphacaps whether they rescind
the contract due to the breach of duty or insist on per
forming the contract.
(2) The statutory provisions regarding the customer's right of
cancellation in case of defects in the delivery remain unaf
fected.
12. Reservation of Title
(1) The goods delivered by alphacaps remain its property until
all claims against the customer arising from the business
relationship have been fulfilled.
(2) The customer shall be entitled to process or transform the
goods. The processing is done for alphacaps. If the value
of the goods delivered by alphacaps is less than the value
of the goods owned by the customer and/or the value of
the processing, alphacaps acquires ownership of the newly
manufactured goods in proportion to the value (gross in
voice value) of the goods delivered by it to the value of the
other goods processed by the customer.
(3) Alphacaps acquires (co-)ownership in the event of insepa
rable mixing or compounds of the delivered goods with
goods Alphacaps has not owned before according to the
previous paragraph 2.
(4) The customer shall assign to alphacaps by way of security
their claim from the resale of the delivered goods or the
newly created goods resulting from processing against
their customer, including any balance claims. The assign
ment shall be valid up to the amount corresponding to the
invoice amount charged by alphacaps to the customer.
(5) Subject to revocation, the customer shall be authorized to
collect the claim assigned to alphacaps. The customer shall
promptly forward payments made on the assigned claim
to alphacaps up to the amount of the secured claim.
(6) alphacaps may revoke the authority to collect if there is a
justified interest and may require the customer to disclose
the assignment by way of security to their customer. If al
phacaps declares the revocation, the customer shall pro
vide alphacaps with the necessary information to assert its
rights against the customer's debtor and hand over the re
quired documents. A justified interest for revocation exists
particularly in case of default of payment, cessation of
payments, imminent insolvency, or imminent enforce
ment measures against the customer's assets.
(7) During the existence of the retention of title, the customer
is not entitled to pledge or transfer the goods as collateral.
If the goods delivered by alphacaps are subjected to en
forcement measures, the customer must inform alpha
caps immediately.
13. Provision of goods
(1) If the customer provides alphacaps with material (raw ma
terials, packaging) for the production of the goods (provi
sions), these are stored at alphacaps at the customer's risk.
The storage represents a contractual accessory obligation.
Alphacaps shall be liable for damage or uselessness of the
provisions only in case of culpable violation of a duty of
care.
(2) The customer shall insure the provided goods against
usual risks at their own expense.
(3) The customer assures that the provisions are free from
third-party rights and that the customer has the sole
dispositive power. Furthermore, the customer assures
that the provisions are manufactured in accordance with
legal regulations (especially food safety).
(4) Provisions are to be delivered at the customer's expense
and risk to the location chosen by alphacaps: DDP Ostring
10, 32832 Augustdorf, or DDP Imkerweg 19c, 32832 Au
gustdorf, Incoterms 2020.
(5) After fulfilling the order, the customer shall promptly take
back excessively delivered goods at their own expense
and risk. If the customer fails to do so, alphacaps is entitled,
after a reasonable deadline has missed, to charge the cus
tomer a customary storage fee.
14. Place of Performance, Jurisdiction, Applicable Law
(1) The place of performance is the location of alphacaps' reg
istered office.
(2) If the customer is a merchant within the meaning of the
German Commercial Code (HGB), the exclusive jurisdiction
for all disputes arising from or in connection with deliver
ies and services by alphacaps, including these terms and
conditions, have the courts at the location of alphacaps'
registered office. However, alphacaps shall also be enti
tled to file a claim at the customer's general place of juris
diction.
(3) German law applies, excluding the conflict of law’s provi
sions of international private law and the United Nations
Convention on Contracts for the International Sale of
Goods (CISG).
15. Data protection | Alphacaps collects and stores cus
tomer data necessary for processing orders and fulfilling
contracts. The data is subject to data protection regulations.
16. Final Provisions
(1) Individually made agreements require written documen
tation promptly for evidentiary purposes.
(2) Compliance with the written form also includes the text
form as defined in § 126b BGB. This shall not apply if a
stricter form is stipulated by law.
(3) If individual terms are partially or entirely invalid, the re
maining valid provisions remain unaffected.
