General terms and conditions
General conditions of sale Incap Europe GmbH, Eintrachthof 5, D-72138 Kirchentellinsfurt
General conditions of sale and delivery of the plastics processing industry (Based on the non-binding conditions recommendation of IK Industrievereinigung Kunststoffverpackungen e.V. from 01.04.2009 and on the PlasticsEurope Association of Plastics Manufacturer.)
The following conditions apply to entrepreneurs, legal entities under public law, or public law special funds.
- Orders become binding only with the order confirmation of the supplier. If the customer does not object to the content within 7 days of receiving the order confirmation, the contract shall be in accordance with the conditions specified therein, even if these deviate from the original agreements due to transmission, communication or spelling errors. Changes and additions should be made in text form. All offers are non-binding, as far as they are not referred to as fixed offers. Quantity or size information is unless expressly designated as binding, non-binding approximations.
- These terms and conditions also apply to future business in the case of permanent business relationships, even if they are not expressly referred to if they were referred to in an order previously confirmed by the supplier.
- Terms and conditions of the customer do not apply, even if we do not expressly contradict them unless they are expressly acknowledged in writing by the supplier. The regulations on distance selling in business dealings with consumers do not apply to the business relationship with entrepreneurs.
- Should individual provisions be or become ineffective, the remaining conditions shall remain unaffected.
II. Offers & Pricing
- Offers, regardless of the form, are always without obligation, until the resulting assignment has become binding in the manner described in Paragraph III
- We exclude any liability for direct or indirect damage caused by inaccuracies in advice and data provided by us with regard to products to be delivered unless there exists intent or wilful recklessness.
- If the exclusion of liability in the previous paragraph cannot be upheld, then the compensation is limited to a maximum of the invoice amount of the agreement (excluding VAT) from which the liability arises, otherwise to the part of the invoice to which the liability relates. The compensation for the damage is in any case limited to the amount disbursed by our liability insurer, to be supplemented with the amount of the deductible that is payable by us in the relevant case in accordance with the applicable insurance contract.
- We exclude any liability for inaccuracies in data, documents, or advice provided by or on behalf of the client for use in the execution of the agreement.
- In case of doubt, the prices are ex-works excluding freight, customs duties, import or export duties, and packaging plus VAT at the statutory rate.
- If the decisive cost factors, in particular for materials, energy, or personnel, change by more than 5% after submission of the offer or confirmation of order until delivery, each party is entitled to demand a price adjustment. This has to be measured according to how the relevant cost factor changes the total price.
- The supplier is not bound to previous prices for new orders.
III. Order, Delivery and acceptance obligation, force majeure
- An agreement with the client is only formed after the assignment given to us has been accepted or confirmed by us in writing, without any reservations. Our order confirmation is deemed to accurately and completely reflect the agreement unless the client explicitly informs us otherwise in writing within 5 working days of receiving the order confirmation. The above likewise apply to the formation of further agreements and to the amendment of existing agreements.
- If, after our acceptance of an order or sale, circumstances arise that affect the cost price, such as changes in the prices of raw materials or in the actual goods to be delivered, in wages, in exchange rates, in import duties, etc., then we are entitled to pass those price changes on to the client. The client will be informed of this.
- After acceptance of the order, amendments specified by the client will only be implemented by us if they have been confirmed by us in writing. If we, for reasons on our part, decide not to implement the specified amendments, the client will never be entitled to dissolve the agreement in whole or in part and the client remains fully liable to pay the agreed price, or, at our discretion, the costs already incurred as well as the amount arising from our loss of profit and idle losses.
- Any orders under the Agreement are exclusively accepted and carried out by Supplier (or its contractors) with due observance of the Product Specifications including the tolerances with regard to dimensions and contents as standardized by Supplier.
- On request of the Buyer, the Supplier shall provide the Buyer with all information relating to the Product Specifications.
- By concluding an Agreement, the Buyer accepts the Product Specifications ‘as is’ including the tolerances, dimensions, size and weight, unless parties have explicitly and in writing agreed otherwise.
- Based on the Product Specifications, the Buyer is responsible at all times to assess whether the Product is suitable for its intended use and application as well as other conditions affecting the Products. The Buyer undertakes to test the suitability of the Products for the intended use.
- The supplier does not accept any liability for the intended use and application of the Products and Buyer shall indemnify the Supplier in this regard.
- The risk of breakage, theft, loss or other damage to the packaging, samples and/or other objects temporarily provided to the Supplier by the Buyer shall be borne by the Buyer.
- Cancellation or dissolution by the client is only possible after prior written permission from us. The client is then obliged to reimburse all costs already incurred by us, as well as our loss of profit and idle losses.
- Delivery periods begin after receipt of all documents required for the execution of the order, the down payment, and the timely provision of materials, insofar as these have been agreed. Upon notification of readiness for shipment, the delivery period is observed if the shipment is delayed or impossible without the fault of the supplier.
- Delivery occurs under the delivery conditions EXW (“Ex Works”) as referred to in the Incoterms 2010. From leaving the warehouse or factory, the goods are at the expense and risk of the client, who must take out adequate insurance for that risk.If agreed delivery time is not adhered to as a result of the supplier’s own fault, the customer is in any case obliged to set a reasonable period of grace.
- Partial deliveries are permitted, as far as reasonable.
- Delivery times are only approximate and are not a strict deadline. We exclude any liability for the consequences of exceeding the suggested delivery time.
- Exceeding the delivery time, due to any cause whatsoever, will not entitle the client to compensation, nor to non-fulfillment of any of his obligations.
- In the case of call orders without an agreement on duration, production lot sizes and acceptance dates, the supplier can demand a binding determination of this no later than three months after the order confirmation. If the customer does not comply with this request within three weeks, the supplier is entitled to set a two-week grace period and to withdraw from the contract after the expiry of the contract and / or to claim damages.
- If the customer does not fulfill his acceptance obligations, the supplier, without prejudice to other rights, is not bound by the regulations on self-help sales, but can instead sell the object of sale without prior notice by the customer.
- Events of force majeure entitle the supplier to postpone the delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in full or in part because of the unfulfilled part. The force majeure are strike, lockout or unforeseen, unavoidable circumstances, such. B. no fault of the business or transport delays or interruptions, no fault of raw materials or energy, equal, which makes the supplier timely delivery despite reasonable efforts impossible. This also applies if the aforementioned hindrances occur during a delay or at a subcontractor. The customer may ask the supplier to declare within two weeks whether he wishes to withdraw or deliver within a reasonable grace period. If the supplier does not declare himself, the customer can withdraw from the unfulfilled part of the contract. The supplier will notify the customer immediately if a case of force majeure, as stated in paragraph 1, occurs. He has to minimize the impact on the customer, possibly by issuing the forms for the duration of the disability.
- We are only obliged to deliver in accordance with the specifications agreed when the orders were placed. We accept no liability for the applicability of the delivered products for the purposes intended by the client or for any other purposes that deviate from the specifications.
- The client indemnifies us against all claims for compensation of any damage, from third parties, arising from this agreement.
IV. Terms of Payment
- All payments are to be made in € (EURO) exclusively to the supplier. Unless otherwise agreed, 50% of the purchase price for deliveries or other services is to be paid without deductions within 3 days from the order confirmation and receiving (Proforma) Invoice (At Order) The remaining 50% within 3 days after the supplier has sent the customer a pickup confirmation. (Before Delivery). This period is a strict deadline. If this period is exceeded, the client is automatically in default.
- If the agreed payment date is exceeded, interest in the amount of the statutory interest rate of 8 percentage points above the respective base interest rate acc. § 247 BGB calculated if the supplier does not prove a higher damage.
- All costs (which expressly includes the full lawyers’ costs), in particular the extrajudicial and judicial costs for collection of our claim, relating to the late payment are to be borne by the client. The extrajudicial collection costs will amount to 15% of the amount due, including VAT.
- Checks or bills of exchange are accepted only with an express prior written agreement and only on account of performance. All costs associated with them are borne by the customer.
- The customer can only offset or assert a right of retention of payments if his claims are undisputed or legally established.
- The sustained failure to comply with terms of payment or circumstances which give rise to serious doubts as to the creditworthiness of the customer shall entitle the supplier to the immediate payment of all claims. In addition, in this case, the supplier is entitled to make advance payments for outstanding deliveries as well as to withdraw from the contract after unsuccessful expiry of a reasonable period of time.
- If there is a reasonable suspicion that the client’s financial position gives cause for this, we are at all times entitled to demand advance payment or cooperation in establishing security for payment of the price within 10 working days of our request. This period is a strict deadline. We are at all times entitled and are hereby irrevocably authorized by the client to perform any further (legal) acts required to establish a lien on the client’s claims or property (which explicitly includes establishment or confirmation of the lien by authentic or registered private deed) and thereby also to act on behalf of the client. We are entitled in the interim to suspend the execution of the work until the requested payment or security has been fulfilled. If the request for payment/security has not been fulfilled within 10 working days, the client is automatically in default and the agreement can be dissolved by us in writing without judicial intervention. The client is then liable for all costs, damage, and loss of profit arising from the agreement and from the premature dissolution.
V. Packaging, shipping, EUR1, transfer of risk and default of acceptance
- Unless otherwise agreed, the supplier chooses to package
- The risk is transferred to the customer even when shipped free of charge upon leaving the delivery works. If delays are caused by the customer, the risk already passes with the notification of readiness for dispatch.
- The EU has signed trade agreements with certain countries to import tax-free. For the EUR1 documents, the goods have to be shipped out of our German warehouses in Brüggen or in Peissenberg. Incap Europe provides the EUR1 document only upon request and charges the customer with EUR 200.-.
- Upon the written demand of the customer, the goods are insured at his expense against risks to be specified by him.
- In the case of default of acceptance of the customer, the supplier is entitled to store the goods at the expense of the customer. Insofar as the supplier stores the goods himself, he is entitled to storage costs amounting to 0.5% of the invoiced amount of the stored goods per commenced calendar week. The assertion of higher storage costs against proof remains reserved.
Inspection and Acceptance
- The Buyer is obliged to take receipt of the Products as soon as these have been made available to him by the Supplier. If the Buyer fails to take receipt of the Products, for whatever reason, the Buyer will be obliged to compensate the Supplier for any resulting storage and other costs.
- On delivery of the Products, the Buyer is obliged to carefully inspect, or have a third party carefully inspect, the Products. A variation of no more than 5% in quantity between the delivered Products and the relevant order shall be deemed acceptable for the Buyer.
- After discovering a defect, the Buyer is obliged to cease the use or processing of the relevant Products with immediate effect and shall keep the defect Products available for inspection by the Supplier.
- Any complaints in respect of incorrect execution of an order must be received by the Supplier in writing no later than 14 days after receipt of the Products, subject to forfeiture of rights. The Buyer shall cooperate with the Supplier in order to validate (or have a third party validate) a claim, which validity check will be within 30 days carried out by the Supplier. The Buyer shall immediately inform the Supplier of any alleged defects to the Products in writing. Any complaints shall include a detailed description of the defect, the relevant batch number(s) of the product order that included the defect Product(s) as well as sufficient samples of the defect Products in order to enable the Supplier to assess the complaint.
- Complaints will not be processed, if it is found that the Buyer and/or third parties have made modifications to the Products, or that these have been adapted or repaired without prior permission from the Supplier.
- If, between the moment of ordering and delivery of those Products, The supplier implements generally introduced changes with regard to the fabrication and/or features of those Products, this cannot be a ground for complaints, provided the Supplier offers replacement Products at the same time, which can be deemed to be at least equal with regard to functionality, (technical) characteristics and design.
- Complaints regarded by the Supplier as justified, only give the Buyer the right to remedy of the delivered Product, delivery of what is missing, free replacement (unless the variation is too minor to justify this) or refund by the Supplier of the price the Buyer paid for the delivered Product, such at the discretion of the Supplier.
- Return shipment of delivered Products is only possible if these are unused and undamaged, are in the original packaging and the relevant prior written permission has been obtained from the Suppliers, failing which the Buyer will pay all costs to the Supplier that are incurred in connection with the return shipment.
- Shown or provided samples, designs, photos and drawings and such items are only indications of the relevant Products in question and do not bind the Supplier unless they have been explicitly guaranteed in writing by the Supplier, whereby it is understood that these statements are deemed to have been provided on an approximate basis.
VI. Retention of title
- The deliveries remain the property of the supplier until the fulfillment of all claims against the customer, even if the purchase price for specially designated claims has been paid. In the case of current invoices, the reserved ownership of the deliveries (goods subject to retention of title) shall be deemed a security for the supplier’s balance calculation. If in connection with the payment of the purchase price, a variable liability of the supplier is justified, the retention of title does not expire before the bill of exchange is accepted by the buyer as a drawee.
VII. Liability for defects & Guarantee
- Decisive for the quality and execution of the products are the product description or, if the preparation thereof has been agreed, the sample of defects which are presented to the customer for inspection by the supplier upon request. Incidentally, no. XII para. 1 must be observed. The reference to technical standards serves the purpose of the specification and is not to be construed as a guarantee of quality. The usual industry tolerances apply. Without a special written agreement, the production takes place with industry-standard materials and according to the agreed, in the absence of agreement according to known manufacturing processes. Slight deviations from the original in color productions or reproductions are not considered defects.
- Notification of defects must be submitted in writing without delay. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all warranty claims expire twelve months after the transfer of risk.
- In the case of a substantiated notice of defects, the supplier is obliged to remedy the defect (repair or replacement at his discretion). If he does not comply with this obligation within a reasonable period of time or if the subsequent performance fails repeatedly, the customer is entitled to reduce the purchase price or to withdraw from the contract. For further claims, in particular claims for reimbursement of expenses or claims for damages due to defects or consequential damages, the limitations of liability acc. No. VIII. Replaced parts are on request to the supplier to return unfree.
- Unauthorized reworking and improper handling will result in the loss of all warranty claims. Only in order to prevent disproportionately large damages or delay of the removal of defects by the supplier, the customer is entitled to repair after prior agreement of the supplier and to demand compensation for the reasonable costs.
- Wear or tear to the usual extent does not give rise to any warranty claims.
- Recourse claims acc. §§ 478, 479 BGB exist only insofar as the right of recourse to the right of recourse by the consumer was justified and only to the legal extent, not for goodwill arrangements not agreed with the supplier, and the observance of the party’s own obligations, in particular compliance with the complaint obligations.
- With due observance of the provisions elsewhere in these general conditions, we vouch, in the case of products manufactured by us or on our behalf, for both the soundness of the products delivered by us and the quality of the material used and/or built for that purpose, in the sense that the soundness of the specification must be predefined for specified products. In the case of delivery, in the context of trade of complete products manufactured by third parties, we only guarantee that the delivered products satisfy the specification and materials agreed between the parties.
- A guarantee period of two years applies, or the explicitly agreed number of plastics products to be produced applies.
- The guarantee given in paragraph 8 & 9 of this Article does not apply if it concerns:
a. defects that are the result of unsuitability of materials and/or components made available or prescribed by the client;
b. defects that are the result of improper use or omission by/on the part of the client or his staff;
c. defects due to normal wear and tear, improper handling, excessive load or use of unsuitable equipment and corrosive chemicals
- The Supplier does not provide any guarantees with regard to the Products other than the guarantees provided by the manufacturer of the Products and that are in, on or attached to the Products or their packaging, for the duration as set by the manufacturer.
- If and so far the Products need to comply with specific statutory, safety and quality requirements in the country of destination, i.e. the country (or countries) to which the Buyer intends to distribute the Products, it is Buyer’s responsibility to verify such requirements and inform the Supplier thereof. The Buyer indemnifies The Supplier against and fully compensates the Supplier for claims with regard to statutory, safety and quality requirements, including claims based on product liability, that relate to such Products that are distributed outside the country of destination.
- The Supplier’s liability is limited to the replacement of faulty or defective Products. The Buyer indemnifies the Supplier against any liability for damage resulting from the use of the Products supplied by the Supplier to the Buyer. The Supplier procures the Products from third parties and will not grant a warranty with respect to these Products in excess of the warranty granted to the Supplier by its suppliers.
- In so far as these manufacturer’s guarantees should not be applicable, The Supplier warrants, for a maximum period of 1 (one)) years from the date the Products have been manufactured, that all Products delivered under the Agreement (unless the Products have been supplied in accordance with designs of the Buyer):
(i) shall conform to the Product Specifications with due observance of the tolerances with regard to dimensions and contents as agreed by the parties;
(ii) be of satisfactory quality meaning that the Products shall be free from material defects in title, materials, workmanship, manufacture and design (to the extent the Supplier, its employees, agents, contractors and/or vendors are responsible for the design); and
(iii) comply with all statutory, safety and quality requirements in the country in which the Products are to be delivered and/or processed (in so far as the Buyer has informed the Supplier thereof and such requirements have been included in the Product Specifications).
- If there is a case of a (partially) faulty Product as a consequence of complying with any mandatory statutory provisions with regard to the nature or characteristics of raw materials and/or materials used in the delivered Products, the Supplier shall not be liable in this respect. Any modification, change or repair with regard to the Products in respect of statutory, safety and quality requirements, must be carried out by a qualified expert.
- The Supplier will never accept responsibility for any further guarantees or undertakings provided by the Buyer to his customers other than is stipulated in this article 9 and the Buyer indemnifies the Supplier in this respect. In the case of a resale of the Products by the Buyer, the Buyer will agree a similar provision with his customers.
- Any liability, which shall also apply for any wrongful act caused by the Supplier, shall be limited to the amount to be paid out by the liability insurer of the Supplier for the occurrence in question, plus any excess to be borne by the Supplier under its liability insurance policy.
- If the liability insurance policy does not proceed to effect payment for any reason whatsoever, the liability of the Supplier shall in all cases limited to an amount that is equal to the total invoice value of the Products (excl. VAT) in the six months prior to the incident causing the damage.
- The Supplier is never liable for consequential damage and indirect damage, including but not limited to loss, lost profit, costs incurred, missed orders, production interruption or standstill and the Buyer shall indemnify the Supplier in that regard.
- The Supplier will be released from any liability and is not obliged to accept complaints regarding faults if the Buyer fails to fulfill any of its obligations under the Agreement promptly.
- Storage: RF365MO (Polypropylene used as a base material for the Incaps) should be stored in dry conditions at temperatures below 50°C and protected from UV-light. Improper storage can initiate degradation, which results in odor generation and color changes and can have negative effects on the physical properties of this product.
VIII. General limitations of liability
- The supplier shall be liable for damages or reimbursement of expenses only insofar as he, his executives or vicarious agents are guilty of intent, gross negligence or injury to life, limb, or health.
- Incap Europe GmbH, the Patent holder or any manufacturing or distribution of the owners of any companies directly associated with the manufacturing or supply of the dosing caps (related companies) will not for any reason be liable or responsible for any damages, claims or injury that accompany or result from your use of the Incap dispensing closures.
- The no-fault liability according to the Product Liability Act as well as the liability for the fulfillment of a guarantee of quality remains unaffected.
- Liability for the culpable breach of essential contractual obligations also remains unaffected; however, the liability is limited to the foreseeable, contract-typical damage except in the cases of No. 1. Significant contractual obligations are the fundamental, elementary obligations arising from the contractual relationship that is particularly relevant to the proper performance or performance of the contract or that significantly affect the relationship of trust existing between the parties, in other words, the fulfillment of delivery obligations and important ones Note duties.
- A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
IX. Food authenticity and recycling materials
- If a product is to be used for contact with food, the suitability of the material for the specific food must be checked in advance by the customer on its own responsibility.
- Incap Europe GmbH or its related companies or the manufacturer of the Incaps closures or the patent holders of the Incap dosing closures is not responsible for any ingredients that may be put inside the caps or material used in the dosing cap. When using the dosing caps for beverages you agree to abide by the laws of your country in relation to food safety and food preparation requirements. You will also need to be aware of, and follow any other regulations like FDA, that your ingredients may fall under.
- Recycling raw materials are carefully selected by the supplier. Regenerated plastics, however, may be subject to greater variations in surface texture, color, purity, odor and physical or chemical properties from batch to batch; this does not entitle the customer to notice of defects to the supplier. However, the supplier will assign any claims against upstream suppliers to the customer upon request; the supplier does not assume any warranty for the existence of these claims.
- Declaration of Origin.
DoO is for customs purposes. The producer (Teamplast) declares that the products are made in the EU. The EU has signed trade agreements with certain countries. Incap Europe provides this DoO upon request.
- Declaration of compliance EU/1935/2004/EC.
Is a statement of our producer (Teamplast) that they produce according to these rules mentioned in the EU/1935/2004/EC.
The DoC for our products is based on the DoC from the suppliers such as raw materials and masterbatch. Incap will only provide these documents upon request.
- Migration Report.
The migration report is the result of a lab test on the raw material (plastic) we let perform by a lab and is done on the raw material only. Any Migration Reports requested on specific colored articles must be initiated by the customer as the color is customer-specific.
- Certificate of Analysis.
This is a document that relates to the actual specification of a specific article and is the result of the measurement performed by the QS department from Teamplast during the production run of the order. There are several CoA’s during a production run. These documents are for internal use only but can be inspected by a customer during an ISO audit. We do not send out CoA’s to customers.
Teamplast, the production partner of Incap Europe GmbH is ISO 22000:2005 certified and does not produce under pharmaceutical guidelines therefore the internal CoA does not comply with pharmaceutical standards.
- Certificate of Conformity.
The CoC is a document where Teamplast as producer states that the production run of an article has been within specifications. The CoC is the resumption of the CoA’s.
A CoC is given for each order. If you split up an order in 2 deliveries the CoC is applicable for both deliveries as it refers to the specific production run.
Incap will only provide these documents upon request.
XI. Place of Fulfillment and Jurisdiction
- The place of performance is the place of production.
- Place of jurisdiction is at the choice of the supplier: his place of business or the seat of the customer.
- These general sales conditions were filed with the German Chamber of Commerce, and are valid from 15 July 2019.
- Exclusively German law applies excluding the UN sales law.
XII. Defense clause
- Deviating terms and conditions of the contractual partner of Incap Europe GmbH do not apply.
- We have the right to amend these general sales conditions at any time. The client is deemed to have accepted any amendment to the general sales conditions if the client has not reported its objections to us in writing within seven days of written notification of the amendments.
As of August 1st 2020