General terms and conditions of sales
PURPOSE AND SCOPE
Any order of products implies the unreserved acceptance by the buyer (hereinafter also referred to as “the Customer”) and his full and complete adherence to these general conditions of sale which prevail over any other documents of the buyer and in particular over any general conditions of purchase, save as otherwise agreed to in express and prior derogation agreement of FLOSTY PACK REPUBLIC, S.L. (hereinafter referred to as “the Company or FLOSTY”).
These general terms and conditions of sale apply to all sales of products by the Company save as otherwise agreed to in specific prior written agreement between the parties.
Any document other than these general conditions of sale and in particular catalogue, brochure, advertising notice, shall only have informative and illustrative value, but not contractual.
ORDERS
Definition
An order means any order relating to products or services offered (by the Company) and accepted by the Company, together with the payment of any upfront payment provided for in the order form.
Amendments
Orders sent to the Company are irrevocable for the buyer, unless the Company has otherwise agreed in writing.
Any request to modify an order may be taken into account by the Company only if such request is made in writing at least 8 (eight) days following acceptance by the Company. Where appropriate, the Company shall be released from the original agreed execution timelines.
The Company shall also be entitled to charge the Customer in the event of cancellation or modification made by them, evidence being provided, for all expenses incurred for the preparation or execution of the order (in particular the raw material) as well as the labour costs plus a fixed amount of 5% of the original order. The customer will be able to dispose of the goods so invoiced. Any storage by the Company beyond what was provided for in the order confirmation will result in an increase in the price of the goods remaining to be delivered by 2% per month representing storage and financial costs.
DELIVERIES
Timelines
Delivery times are given for informative and illustrative purposes only. These depend in particular on the availability of transporters and the order of arrival of orders. The Company endeavours to respect delivery times as stated upon acceptance of the order, depending on the logistics period of reference in the profession, and to execute orders, except in cases of force majeure or circumstances beyond its control, as defined in Article 9 of these general conditions of sale.
Delays in delivery may not give rise to any penalty or indemnity or cause the cancellation of the order.
The execution timelines shown on an order are accepted by the Company, and are only binding upon it, subject to compliance by the buyer with the payment terms and payment of upfront payments, timely provision of technical specifications, absence of delay in studies or preparatory work, absence of force majeure, social, political, economic, technical or health events preventing the proper functioning of the Company's factories or the proper supply of components, energy or raw materials.
Transportation
It is up to the buyer, in the event of damage to the delivered goods or missing goods, to make all necessary reservations to the carrier.
Any product that has not been subject to reservations made in writing within 30 (thirty) days of its receipt by the carrier (or the Customer) will be considered as accepted by the Customer.
Receipt
Without prejudice to the arrangements to be made by the purchaser in connection to the carrier, in the event of apparent defects or missing products any claim of any nature relating to the delivered products shall be accepted by the Company only if it is made in writing within the 30 (thirty)-day period provided for in Article 8 below.
It is up to the buyer to provide all evidence as to the existence of defects or shortage found, and the Company reserves the right to carry out, directly or indirectly, any finding and verification on the spot.
No return of goods may be made by the buyer without the express prior written consent of the Company, obtained specifically by e-mail. The costs of the said return shall be borne by the Company only in the event that an apparent defect, or shortage is actually ascertained by the latter or its agent. Only the carrier chosen or approved by the Company is entitled to return the manufactured products.
Where, following inspection, an apparent defect or shortage is actually found by the Company or its agent, the Customer may only ask the Company to replace the non-conforming articles and/or to supplement the missing products, without the Customer being entitled to any compensation or cancellation of the order.
The unreserved receipt of the products ordered by the buyer covers any apparent and/or missing defects. Any reservation shall be confirmed in the conditions provided for in Article 3.3.1.
Any claims made by the Buyer under the terms and conditions described in this Article shall not suspend payment by the buyer of the relevant goods.
The liability of the Company shall under no circumstances be held in question for damage caused during transportation, destruction, damage, loss or theft, even where the Company had chosen or approved the carrier.
Under no circumstances shall the liability of the Company be sought for damages and interests in connection with hidden defects, nor shall it be held liable beyond the value of the goods deemed defective.
Suspension of deliveries and orders
In the event of non-payment of an invoice due in full, and following notice which had not been effective, the Company reserves the right to suspend any delivery or new order in progress and/or potential order, without the buyer being entitled to any compensation, for any reason whatsoever.
In the event of commencement of court proceedings or liquidation of assets, ongoing orders will be automatically canceled. The Company reserves the right to claim the goods in stock.
Cash Payments
The Company shall only accept to execute an order where the Customer provides sufficient financial guarantees, and that they shall effectively pay the sums due at their maturity in accordance with the law. Also, if the Company has serious or special reasons to fear payment difficulties on the part of the buyer on or after the date of the order, or if the buyer does not provide the same guarantees as those existing on the date of acceptance of the order, the Company may make the acceptance of the order conditional on the acceptance of the order or the continuation of its execution to a cash payment or to the provision by the purchaser of guarantees for the benefit of the Company.
The Company shall also have the right, before the acceptance of any order, as in execution, to require the Customer to communicate its accounting documents, and in particular the profit and loss accounts, even preliminary, enabling them to assess solvency.
INTELLECTUAL PROPERTY
Any technical documentation (“the Documents”) provided to our customers, and all intellectual property rights relating thereto remain the exclusive property of the Company, sole owner of the intellectual property rights in these documents and the disclosed products, and must be returned to them at their request. This is expressly accepted by the Customer.
The Customer undertakes not to breach the Company's intellectual property rights and undertakes not to disclose the Documents to third parties.
Thus, and without limitation, the reproduction, distribution and public communication of all or part of the documents and/or contents made available to the Customer, especially for commercial purposes, is expressly prohibited, in any format whatsoever and by any technical means, without the Company´s prior consent.
The Customer undertakes not to file any industrial property rights relating to any technique and/or aesthetic characteristic of FLOSTY.
Where the manufacturing of the Company is carried out on the basis of plans or models created by the Company or with tools or moulds owned by the Company, even partially, the execution of these parts may be entrusted to third parties only with the Company´s consent.
Documents: The Customer may upon exchanges receive “Documents” from the Company, have access to them or potentially access confidential information. In this sense, any information relating to but not limited to industrial processes, development plans, strategic plans, know-how, trade secrets, receipts, methods, functional analyses, statistics, economic and financial details, commercial lists, feasibility analysis, technical specifications, formulations, design drawings, studies, plans and
technical drawings as well as any information whose free use or communication has not been explicitly authorized to the Customer shall be deemed documents of privileged access and thus confidential.
MODELS, MOULDS, TOOLS, PLATES, TESTS, SAMPLES AND BEATS
Models, moulds, tools, etc., executed by the Company or by a subcontractor for the Customers remain the property of the Company except for production tools fully invoiced to the Customer.
The Company shall use all possible means to ensure the good condition and preservation of plates or models, moulds, tools, and models belonging to customers, except in cases of force majeure under which the Company declines any liability.
After 2 years of non-use of tools belonging to the Customer, the Company reserves the right to charge storage fees. Failure to pay these fees and following a formal notice requiring payment, the Company shall then be entitled to proceed with the destruction of these tools, or their use be not limited to the customer's own use.
Where samples are submitted to the customer, any corrections must be made and the documents sent back containing the words “approved for printing”, the date and the Customer's authorized The Company shall not be liable if the execution complies with the latest “approved for printing” signed by the Customer.
PRICES AND TERMS OF PAYMENT
Payment
The prices applied by the Company are quoted and based on the economic conditions on the date as stated, and may be revised in the event of fluctuations in the elements conforming the cost price (salaries, raw materials, etc.). The invoiced price will be the one in effect at the time of delivery. However, in the event that it becomes impossible to obtain a revised price for any reason whatsoever, the Company reserves the right to suspend the execution of the order.
Prices are calculated net and payable on the date as stated on the invoice. In any case, payment shall not be made later than 45 days of the end of the month or 60 days of the issuance of the invoice. Only the actual receipt of drafts or bills of exchange will be considered as full payment within the meaning of these general terms and conditions of sale.
Non-payment
Any amount TTC (including tax) not paid at the due date shall result in payment by the Client of penalties set at three times the statutory interest rate. These penalties are due by operation of law and will automatically be debited to the Customer's account.
RETENTION OF TITLE
The transfer of ownership of the products is carried out upon payment of the price by the Customer, both principal and interest, even in case of instalments. Any clause to the contrary, in particular inserted in the Customer´s General Conditions of purchase, shall be deemed to be unwritten.
By express agreement, the Company may exercise the rights it holds under this retention-of-title clause, in respect of any of its claims, over all of its products in the possession of the Customer, the latter being conventionally presumed to be those unpaid, and the Company may take over or claim them in compensation for all its unpaid invoices, without prejudice to its right to terminate outstanding sales.
The Company may also require, in the event of non-payment of an outstanding invoice, the termination of the sale by just sending a formal notice. Likewise, the Company may unilaterally, following a formal notice, draw up or have an inventory of their products in the Customer's possession, who already undertakes to grant free access to its warehouses, stores or other for this purpose, ensuring that the identification of the Company's products be always possible.
This clause does not prevent the risks of the goods being transferred to the buyer upon delivery to the buyer.
From the moment of delivery, the buyer shall be appointed custodian of the said goods.
In the event of non-payment and unless the Company prefers to request the full execution of the sale, the Company reserves the right to terminate the sale following notice and claim the delivered goods, the return costs being at the expense of the buyer and the payments being received by the Company as a penalty clause.
GUARANTEE OF APPARENT AND HIDDEN DEFECTS
The products must be checked by the Customer upon delivery, and any claim, reservation or dispute relating to any missing parts or apparent defects must be made in accordance with the conditions set out in Article 3.
Reporting of defects existing at the time of delivery, and revealed following receipt of the products must be made by the Customer in writing within 3 (three) days of the date when the lack of conformity is found. No report shall be taken into account if made later than 30 (thirty) clear days following delivery of the products.
No action for non-compliance may be initiated by the Customer later than 30 days following delivery of the products. It is expressly agreed by the Customer's acceptance of these general conditions of sale that following expiry of this period, the Customer may not invoke the non-conformity of the products, nor oppose it as a counterclaim in order to defend themselves in the course of an action for the collection of debts initiated by the Company. Failure to comply with these conditions shall result in our Company's liability towards the Customer for a hidden defect not being applicable.
Defects and deterioration of the products delivered as a result of abnormal storage and/or storage conditions in the Customer´s premises, in particular in the event of an accident of any kind whatsoever, shall not entitle to the warranty due by the Company.
As part of the warranty of hidden defects, our Company will only be obliged to replace defective goods without charge, and the Customer shall not claim damages and interest, for any reason whatsoever.
The Company guarantees its products against hidden defects, in accordance with law, practice, jurisprudence, and under the following conditions:
The warranty granted by the Company applies only to products that have regularly become the property of the buyer. It applies only to products manufactured in whole by the Company. It is excluded as long as the Company's products have been used under unplanned or non-compliant conditions of use.
The Company's warranty is for hidden defects only. As Customers are professionals, the hidden defect refers to a defect in the manufacturing of the product that renders it unsuitable for its use and not likely to be detected by the buyer before its use. A design defect is not a hidden defect and the Customers are deemed to have received all technical information relating to the Company's products.
The Company does not cover damage and wear and tear resulting from the adaptation or special assembly, abnormal or otherwise, of the Company's products, unless these have been carried out under the Company´s supervision.
Limitations
The Company's warranty is limited to the replacement or repair of defective parts.
Our warranty is limited to the first 6 (six) months of use.
The Company´s warranty ceases by operation of law where the Customer has not notified the Company of the alleged defect within 20 (twenty) clear days from the day of its discovery. It is the Customer's responsibility to prove the day when they became aware of this defect.
FORCE MAJEURE
Events beyond the control of the parties, which they could not reasonably be expected to foresee, and which they could not reasonably avoid or overcome, shall be considered as force majeure or incidental cases, insofar as their occurrence renders fulfillment of obligations totally impossible.
These include cases of force majeure or acts of God which relieve the Company of its obligation to deliver within the timelines initially stipulated: strikes of all or part of the Company's staff or their usual transporters, fires, freeze, storms, floods, war, production breaks due to accidental breakdowns, impossibility of being supplied with raw materials, epidemics, pandemics and health emergencies, road closures due to thawing snow, road blocks, strikes or supply disruption for a cause not attributable to our Company, and any other cause of disruption of supply attributable to the Company's suppliers.
Under such circumstances, the Company shall serve notice to the Customer in writing, in particular by e-mail, within 48 (forty-eight) hours of the date of the events, informing that the agreement between the Company and the Customer be suspended automatically without compensation, from the date of any of the aforementioned events.
If the event lasts longer than 30 (thirty) days from the date of its occurrence, the agreement of sale executed by the Company and the Customer may be terminated by the most expeditious party, without any of the parties being entitled to claim damages or interest.
Any such termination shall take effect on the date of first submission of the registered letter with acknowledgement of receipt requesting the termination of the agreement of sale.
WAIVER
Failure by the Company at any given time to avail itself of any of the clauses herein shall not constitute a waiver of any subsequent use of these same clauses.
APPLICABLE LAW AND JURISDICTION
These general terms and conditions of sale are governed by the Spanish law. Any dispute concerning the interpretation or execution of these terms and conditions shall be resolved by the Courts of Barcelona.
REGULATORY FRAMEWORK
In the absence of a specific regulation applicable to the cosmetics packaging sector and pending for a decision from the European authorities on this subject, FLOSTY is only able to confirm to its customers the application and monitoring of the following European regulations:
Regulation (EC) 1223/2009 on cosmetic products
Regulation (EC) 1907/2006 Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)
Regulation (EC) 1272 Classification, Labelling and Packaging of substances and mixture (CLP)
TECHNICAL SPECIFICATIONS
GENERAL TECHNICAL CONDITIONS
FLOSTY understands that by accepting the offer, the Customer knows and accepts the following conditions:
Every Standardized Cap has a TDS; the TDS are available under request.
Dimensions and tolerances (if any in the TDS) are indicated in the TDS associated with the Standardized Cap.
Inspections for these dimensions are carried out by means of callipers tools and/or measurement instruments according to the error density allowed by the tolerance of the target measure. (See Note 2).
Dimensions without a written tolerance in TDS will not be inspected by the QC FLOSTY Team; therefore, they will not be accepted by FLOSTY as a base for any future claim by the customer party.
Inspections for internat dimensions, if required, will be configured using interior callipers tools. (e.g. to check interior grooves or internal diameters).
FLOSTY only guarantees dimensions in the TDS, but not the functionality of the piece.
Aesthetic inspections only refer to the outside surface of the articles.
The AQLs defined for the FLOSTY Standardized Caps are: Critical 0,65; Major 1,5 and Minor 4. (See Section 13.4).
The effects that FLOSTY articles may eventually produce on other packaging components afterwards used by the customer will not be a responsibility imputable to FLOSTY, consequently FLOSTY will not accept any claim on this basis.
The classification of potential imperfections of the Standardized Cap is denied according to Range Boards specifically developed for the article..
FLOSTY offers their customers a wide variety of analyses, laboratory tests, certifications as well as other specific conditions for its articles and services. However, these must be requested from the Commercial Department during the early stages of the offer configuration.
FLOSTY could deliver to customer the set of calliper tools used for quality inspections. However, this will be considered as an additional service, thich must be negotiated in advance as part of an additional agreement managed with the Commercial Department.
Range Boards, both the colour and the defect ones, are available to the customer buying discretion. But, given that they are a complex material to prepare they are not included in the offer by default. Consequently, Range Boards must be subject of an agreement with the Commercial Department.
CHANGE CONTROL
Any significant change, in the opinion of FLOSTY Management , on its articles or services, will be properly notified to the customer in the best possible time frame.
QUALITY ASSURANCE: SAMPLING PLANS
FLOSTY Sampling Plans are performed according to the international standard UNE-ISO 2859-1:2012 Sampling procedures for inspection by attributes - Part 1: Sampling schemes indexed by acceptance quality limit (AQL) for lot-by-lot-inspections.
FLOSTY QC Teams performed statistical sampling methods during productions and expeditions.
The sampling plan details the number of pieces to be collected as well as the acceptance and rejection limits depending on the lot size, AQL and chosen control level.
FLOSTY performs control for the Standardized Caps components according to the following inspection level.
Level I for visual inspections,
Level S3 for dimensional inspections,
Level S1 for destructive inspections, if required.
Inspected items will be distributed in equal quantities on the (square root for the total number of pallets) + 1 and distributed on the (square root of the total number of boxes) +1.
ACCEPTANCE QUALITY LEVELS (AQL)
Quality defects are classified according to three defect categories: critical, major and minor. Each category is associated with an Acceptance Quality Level (AQL). If several category defects are found on the same item, only the most serious is taken into account.
Critical defect: 0.65
Any defect that is dangerous during the normal use of the product by the user or the packager.
Any defect or deterioration which would make the item unusable.
Major defect: 1.5
Any defect which, without making the product unusable, strongly depreciates its use, aesthetic and commercial value.
Any aesthetic defect clearly visible at first glance at 80 cm length.
Any defect that does not respect dimensional requirements.
Any defect which, without making the product unusable for packaging could imply needs of additional personnel.
Minor Defect: 4,0
Any aesthetic defect that slightly depreciates the commercial value of the product.
ORGANIZATION OF INSPECTIONS
To carry out the QC Inspections and Approvals for the standardized caps, FLOSTY considers necessary the following elements:
Defects Range Boards,
Colour Range Boards,
Control Plans,
Callipers, measuring instruments and BAT.
Level Defects Assessments
Range Boards usually contains examples of defective parts considered as “OK Limit” or OKL; the OKL represents the limit at which any defect beyond this limit will be considered as a confirmed/prove one.
Any defect founded up to the OKL (less than equal inside the scale) will be considered as a non-defect item or item OK.
On the opposite, if into the Defects Range Board a minor defect is described without reference to the “OK Limit/OKL”; then any defect lower-down than the minor one cannot be counted as a defect. Correspondingly, any defect positioned above the minor one will be considered as a major defect.
Colour Inspections
This kind of inspection for Standardized Caps includes looking conditions and ensures colour complies with setting defined by the colour Range Board associated with the item. In the absence of a specific associated Colour Range Board, the colour reference for the approvals will be the standard colour.
Packing Expedition Inspection
The last inspection is the visual check-up of pallets, this operation is carried out by the FLOSTY Shipment Team, includes general exterior conditions of the pallet packing:
Conditioning: Verification of the external conditions of the pallet: cleaning and integrity.
Identification: Verification that labelling and other identification elements previously agreed with the Customer are correct, e.g Item ID; Order Number, Deliver Note, Quantity and Lot Number.
TERMS OF ACCEPTANCE OR REFUSAL
The results of inspections will be used to determine whether a lot of Standardized Caps is compliant or non-compliant. The compliant lots will be receiving the OK/Approved status; non-compliance lots will be rejected.
Any non-conformity associated with the Standardized Caps produced by FLOSTY must be compulsory notified to the FLOSTY must be compulsory notified to the FLOSTY Quality Staff via a formal document which will centralize all information considered necessary to manage the refuse process.
Once the previous cited documentation has been received acknowledgment of receipt by Quality FLOSTY staff with authority, the process of decision-making, acceptance or rejection of the claim by FLOSTY may be considered as initiated.
NOTE 1: FLOSTY processes and productions comply with the local, national and European Regulations required for the industry sector.
NOTE 2: FLOSTY could deliver to customer the set of calliper tools used for quality inspections. However, this will be considered as an additional service, which must be discussed in advance as part of an agreement managed with the commercial Department.
NOTE 3: Only FLOSTY Quality Department Staff has authority to configure, approve and provide the materials cited by section 13.5.