AGB´s

NESSCAP Ultracaps

General Terms and Conditions CapComp GmbH

 

I. Scope

 

The following terms and conditions of sale shall apply to all contracts concluded between the Buyer and us for the delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the buyer which we do not expressly acknowledge are non-binding for us, even if we do not expressly contradict them. The following terms and conditions of sale shall also apply if we carry out the buyer’s order without reservation despite being aware of conflicting or deviating terms and conditions of the buyer.

 

  1. In the contracts all agreements made between the buyer and us for the execution of the purchase contracts are laid down in writing.

 

II. Offer and conclusion of contract

 

  1. we can accept an order of the buyer, which is to be qualified as an offer to conclude a sales contract, within two weeks by sending an order confirmation or by sending the ordered products within the same period.

2 Our offers are subject to confirmation and non-binding unless we have expressly designated them as binding.

We reserve our property rights, copyrights and other industrial property rights to all illustrations, calculations, drawings and other documents. The purchaser may only pass these on to third parties with our written consent, irrespective of whether we have marked them as confidential.

 

III. Terms of payment

 

Our prices apply ex works without packaging unless otherwise specified in the order confirmation. In our prices the legal value added tax is not included. These will be shown separately in the invoice at the statutory rate on the day of invoicing.

2 A cash discount deduction is only permissible in the case of a special written agreement between us and the purchaser. The purchase price shall be due for payment net (without deduction) immediately upon receipt of the invoice by the Buyer, unless the order confirmation states otherwise. A payment shall only be deemed to have been made when we can dispose of the amount. In the case of payments by cheque, payment shall not be deemed to have been made until the cheque has been cashed.

 

  1. if the buyer defaults with a payment, the legal regulations apply.
  2. the buyer is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, acknowledged by us or are undisputed. The buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

 

IV. Time of delivery and performance

 

Delivery dates or periods which have not been expressly agreed as binding are exclusively non-binding information. The delivery time stated by us does not begin until the technical questions have been clarified. The buyer must also fulfil all obligations incumbent upon him properly and on time.

If the underlying purchase contract is a firm deal within the meaning of § 286 Para. 2 No. 4 BGB or § 376 HGB, we shall be liable in accordance with the statutory provisions. The same shall apply if the purchaser is entitled, as a result of a delay in delivery for which we are responsible, to assert the discontinuance of his interest in the further fulfilment of the contract. In this case, our liability shall be limited to the foreseeable, typically occurring damage if the delay in delivery is not due to a premeditated breach of contract for which we are responsible, whereby fault on the part of our representatives or vicarious agents shall be attributable to us.

 

We shall also be liable to the Buyer in the event of delay in delivery in accordance with the statutory provisions if the delay is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby any fault on the part of our representatives or vicarious agents shall be attributable to us. Our liability shall be limited to the foreseeable, typically occurring damage, if the delay in delivery is due to

 

is not based on an intentional breach of contract for which we are responsible.

3 In the event that a delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation, whereby the fault of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with the statutory provisions with the proviso that in this case the liability for damages shall be limited to the foreseeable, typically occurring damage.

4 Further liability for a delay in delivery for which we are responsible is excluded. The further legal claims and rights of the buyer, to which he is entitled in addition to the claim for damages due to a delay in delivery for which we are responsible, remain unaffected.

We shall be entitled to make partial deliveries and render partial services at any time, insofar as this is reasonable for the customer.

If a buyer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred and any additional expenses. The same shall apply if the buyer culpably violates his obligations to cooperate. The risk of accidental deterioration and accidental loss shall pass to the buyer upon the occurrence of default in acceptance or debtor’s delay.

 

V. Transfer of risk - Shipping/Packaging

 

1 Loading and dispatch shall be carried out uninsured at the risk of the purchaser. We shall endeavour to take into account the buyer’s wishes and interests with regard to the type and route of shipment; any additional costs incurred as a result - even in the case of agreed freight-free delivery - shall be borne by the buyer.

2 We do not take back transport packaging or any other packaging in accordance with the Packaging Ordinance, with the exception of pallets. The buyer has to take care of the disposal of the packaging at his own expense.

  1. if dispatch is delayed at the request or fault of the buyer, we shall store the goods at the expense and risk of the buyer. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch.

4 At the request and expense of the purchaser, we shall insure the delivery by means of transport insurance.

 

VI Warranty/Liability

 

  1. claims for defects of the buyer exist only if the buyer has fulfilled his duties of inspection and complaint according to § 377 HGB properly.

In the case of justified notices of defects, we are obliged to subsequent performance to the exclusion of the purchaser’s rights to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse subsequent performance on the basis of the statutory provisions. The purchaser shall grant us a reasonable period of time for subsequent performance. The supplementary performance can be carried out at the discretion of the buyer by elimination of the defect (rectification) or delivery of new goods. In the event of rectification of defects, we shall bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located at a location other than the place of performance. If the subsequent performance has failed, the purchaser may, at his discretion, demand a reduction in the purchase price (abatement) or declare his withdrawal from the contract. The rectification shall be deemed to have failed with the second unsuccessful attempt, unless further attempts at rectification are reasonable and reasonable for the Buyer due to the subject matter of the contract. The buyer can only assert claims for damages due to the defect under the following conditions if the subsequent performance has failed. The right of the buyer to assert further claims for damages under the following conditions remains unaffected.

  1. the warranty claims of the buyer expire one year after delivery of the goods to the buyer, unless we have fraudulently concealed the defect; in this case the statutory provisions apply. Our obligations under Section VI No. 4 and Section VI No. 5 remain unaffected by this.

We are obliged to take back the new goods or to reduce the purchase price in accordance with the statutory provisions, even without setting the otherwise necessary deadline, if the buyer’s customer as consumer of the new movable item sold (purchase of consumer goods) was able to demand the return of the goods or the reduction of the purchase price from the buyer due to the defect of these goods, or if the buyer is confronted with the same resulting right of recourse. In addition, we are obliged to reimburse the purchaser for any expenses incurred by the latter, in particular transport, travel, labour and material costs, which the latter had to bear in relation to the end consumer within the framework of subsequent performance due to a defect in the goods which existed at the time when the risk passed from us to the purchaser. The claim is excluded if the buyer has not properly fulfilled his obligations to inspect the goods and make a complaint in accordance with § 377 HGB (German Commercial Code).

The obligation pursuant to Section VI, para. 4 is excluded if the defect is due to advertising statements or other contractual agreements that do not originate from us, or if the buyer has given a special guarantee to the end consumer. The obligation shall also be excluded if the purchaser himself was not obliged to exercise the warranty rights vis-à-vis the end consumer on the basis of the statutory provisions or did not make this complaint vis-à-vis a claim made to him. This shall also apply if the purchaser has assumed warranties vis-à-vis the end consumer which go beyond the statutory provisions.

6 We shall be liable irrespective of the following limitations of liability in accordance with the statutory provisions for damages to life, body and health which are based on a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damages which are covered by liability in accordance with the Product Liability Act. For damages which are not covered by sentence 1 and which are based on intentional or grossly negligent breaches of contract as well as fraudulent intent by us, our legal representatives or our vicarious agents, we shall be liable in accordance with the statutory provisions. In this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted intentionally. To the extent that we have given a quality and/or durability guarantee for the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage which is based on the absence of the guaranteed quality or durability but which does not occur directly on the goods if the risk of such damage is clearly covered by the quality and durability guarantee.

  1. we shall also be liable for damage caused by our simple negligent breach of contractual obligations, the fulfilment of which is essential for the proper performance of the contract and the observance of which the purchaser regularly relies on and may rely on. However, we shall only be liable if the damages are typically associated with the contract and foreseeable.

Any further liability shall be excluded irrespective of the legal nature of the asserted claim; this shall in particular also apply to tortious claims or claims for reimbursement of futile expenses in lieu of performance; our liability pursuant to Section IV, para. 2 to Section IV, para. 5 of this contract shall remain unaffected thereby. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.

  1. claims for damages of the buyer due to a defect become statute-barred one year after delivery of the goods. This shall not apply in the event of injury to life, limb or health caused by us, our legal representatives or our vicarious agents, or if we, our legal representatives have acted with intent or gross negligence, or if our simple vicarious agents have acted with intent.

 

VII Retention of title

 

  1. the delivered goods (reserved goods) shall remain our property until all claims, including all current account balance claims, to which we are entitled against the purchaser now or in the future, have been satisfied. In the event of breach of contract by the purchaser, e.g. default in payment, we shall have the right to take back the goods subject to retention of title after setting a reasonable deadline beforehand. If we take back the reserved goods, this constitutes a withdrawal from the contract. If we seize the reserved goods, this is a withdrawal from the contract. We shall be entitled to utilise the reserved goods after repossession. After deduction of a reasonable amount for the costs of realisation, the proceeds of realisation shall be set off against the amounts owed to us by the purchaser.
  2. the buyer has to treat the reservation commodity carefully and to insure these at his expense against fire, water and theft damages sufficiently to the replacement value. Maintenance and inspection work which become necessary must be carried out by the purchaser in good time at his own expense.

The buyer is entitled to sell and/or use the reserved goods properly in business transactions as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. The buyer hereby assigns to us in full by way of security any claims arising from the resale or any other legal reason (insurance, tort) in respect of the reserved goods (including all current account balance claims); we hereby accept the assignment. We revocably authorise the purchaser to collect the claims assigned to us for his account in his own name. The direct debit authorization can be revoked at any time if the buyer does not meet his payment obligations properly. The buyer is also not entitled to assign this claim for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is simultaneously justified to affect the consideration in the amount of the claims directly to us as long as we still have claims against the buyer.

  1. any processing or transformation of the reserved goods by the buyer shall in any case be carried out for us. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other processed items at the time of processing. The same shall apply to the new object resulting from the processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other mixed items at the time of mixing. If, as a result of the mixing, the Buyer’s item is to be regarded as the main item, the Buyer and we agree that the Buyer assigns to us pro rata co-ownership of this item; we hereby accept the assignment. Our sole or co-ownership of an item thus created shall be held in safe custody by the purchaser on our behalf.
  2. in the event of access by third parties to the reserved goods, in particular seizures, the purchaser shall point out our ownership and inform us immediately so that we can assert our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for these.
  3. we are obliged to release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %, whereby we are free to select the securities to be released.

VIII Place of performance, place of jurisdiction, applicable law

The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between us and the Buyer from the purchase contracts concluded between us and the Buyer shall be our registered office. However, we are also entitled to sue the buyer at his place of residence and/or business.

2 The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.