Terms and conditions of sale

1- Orders.

1. INCAPS DESIGN issues its customer with a numbered ‘Order Form’ which will become the reference for the file until invoicing.

2. All orders are irrevocable, final and non-modifiable in terms of content, upon receipt by INCAPS DESIGN of the customer’s ‘Approval Form’, which implies, unless otherwise specifically agreed, the unconditional and unreserved acceptance of these ‘General Terms and Conditions of Sale’.

3. The execution of the order also requires the customer’s prior approval of the graphic design (maximum of three proofs per model) and the embroidery sample sent to them by INCAPS DESIGN. ‘Proof’ refers to a physical representation of all or part of the model ordered, in particular the embroidery. INCAPS DESIGN may provide this proof:

4. by default in the form of a detailed reproduction (photograph or digitised image) sent by email

5. or, if necessary or by special agreement, in the form of a physical sample, either partial (fabric sample) or complete (prototype), sent by post or courier.

6. With regard to the embroidery, INCAPS DESIGN undertakes to provide the sample defined in points 1-3 and to improve the finish where necessary, based on the customer’s comments, as far as possible and within the limits of technical possibilities.

7. By definition, embroidery work involves adjusting the visuals and logos provided by the customer to technical constraints. In terms of aesthetic quality, INCAPS DESIGN is therefore subject to an obligation of means, both for the sample and for the products ordered, but cannot be held to an obligation of result.

8. Specific requests for prototypes: any specific request for prototypes that does not fall within the scope of an already defined order will be subject to the issuance of a specific purchase order, following the same procedure as above, subject to invoicing and payment, and will be credited if it results in a confirmed order for the same model.

9. Any order implies acceptance of Incaps Design’s GTC. Consequently, Incaps Design cannot be held liable for non-performance or poor performance of the contract in the event of force majeure. Furthermore, given the unpredictable nature of the global health crisis we are experiencing (COVID-19) and its impact on our business, if restrictions are tightened, we may be forced to suspend the fulfilment of our orders without Incaps Design being held liable in any way.

2- Delivery, transfer of risk, retention of title

2-1 The delivery times given are calculated from the date of written confirmation by the customer of the proof submitted by INCAPS DESIGN as defined above.

They are for information purposes only, unless otherwise agreed in advance, and INCAPS DESIGN will endeavour to meet them. It is also recognised that, insofar as the products offered by INCAPS DESIGN are generally made to order and shipped from foreign sites by various means of international transport and subject to regulatory procedures (particularly customs), a reasonable delivery time for orders must be taken into account.

The delivery time indicated at the time of ordering will automatically become void in the event of:

– a change to the order that may cause a delay.

– failure by the customer to comply with the payment terms as defined on the order form, particularly in the case of a deposit payment.

– late provision of technical specifications, late validation, or force majeure.

2-2 Deliveries are made by carriers independent of INCAPS DESIGN or by Colissimo, to the address indicated by the customer. The customer has the option of collecting the products themselves.

2-3 The carrier may not make more than three delivery attempts, after which the goods will be returned to INCAPS DESIGN. Given that the customer is informed by our logistics department prior to delivery, if delivery becomes impossible due to the customer, the additional costs incurred will be borne by the customer.

2-4 Unless specifically agreed in advance, the transfer of risk takes place when the products are handed over to the carrier responsible for delivering the products to the customer or to the recipient designated by the customer.

2-5 The goods will be considered accepted if no complaint is made by the customer to our company by any means within three days of delivery. No complaints will be considered after this period.

2-6 Unconditional acceptance of the delivery by the carrier covers any apparent defects and/or missing items.

2-7 The validity of the complaint made under the conditions of Article 2-3 does not entail the right to suspend payment for the goods under the agreed terms.

2-8 Delivery does not entail any transfer of ownership before full payment of the price, as all goods delivered are subject to retention of title. The customer may not resell unpaid goods without the prior authorisation of their owner.

2-9 Upon delivery, INCAPS DESIGN may indicate the day to the customer but cannot guarantee a delivery time. However, a particular mode of transport may be agreed upon at the time of ordering or before delivery, for example in the case of a request for express delivery. Any additional costs not mentioned in the order form that are not attributable to INCAPS DESIGN will then be invoiced, with the prior agreement of the customer.

2-10 If VAT is payable in accordance with the legal provisions of the recipient’s country, it must be paid in addition to the cost of the goods upon receipt. In addition, import taxes may be payable; the customer must pay these in addition to the cost of the goods upon receipt.

3- Price, invoicing, application of VAT, payment.

3-1 The price of the order depends on its components, as INCAPS DESIGN products are customised to each order.

3-2 The price of the components is that in force on the day of the order. This price is indicative and may be modified depending on the specific adaptations of each order. Without this being an exhaustive list, the main components likely to affect the price are: the model, the quantity, the type and quality of the material, the finishing options, and the delivery time.

3-3 From points 3-1 and 3-2 above, it is clear that any prices communicated outside of individualised quotations or purchase orders can only be examples.

3-4 Unless otherwise stated, the prices indicated on quotations or purchase orders issued by INCAPS DESIGN are valid on the date of issue. Unless INCAPS DESIGN receives the customer’s written agreement to the quotation or purchase order in question by fax or email, INCAPS DESIGN reserves the right to modify its prices and propose a new agreement.

3-5 As INCAPS DESIGN is a company registered in France, French VAT is applied by default to all our prices.

– If the customer is established in the EU,

prices are exclusive of VAT, in accordance with Article 262-ter1 of the French General Tax Code, provided that the customer is able to provide us with a valid and verified intra-Community VAT number.

NB: The tax identification number (NIF) for Spain does not automatically constitute an intra-Community VAT number.

– If the customer is established outside the EU,

this will be considered an export (Switzerland, the Canary Islands, the French overseas departments and territories being considered export countries), prices are exclusive of VAT, in accordance with Article 262-ter1 of the CGI and Article 294-2 of the CGI, provided that the customer is a company and is able to provide proof of export.

Whether the customer is based within or outside the EU, the place of delivery of the products is also a determining factor in the application of VAT. Where applicable, for example in the case of delivery within France, the customer must provide proof that the products are indeed destined for the country of invoicing and are therefore intended for distribution in the country of invoicing. If the customer is unable to provide INCAPS DESIGN with any of these elements, for any reason whatsoever, French VAT shall apply.

The price is payable in accordance with the terms and conditions indicated on the order form, with any partial payment constituting a deposit.

Unless otherwise required, particularly in the case of an export, invoicing takes place on the date of delivery. The invoice includes the items as defined in the order form, to which may be added the additional costs listed above in the various articles and VAT at the rate of 20%, if the constituent items have not been received by INCAPS DESIGN on the date of issue of this invoice.

By default, unless special conditions have been agreed in advance by INCAPS DESIGN, the payment terms applied are: 40% upon order, balance before delivery.

These payment terms will be applied to all new customers without the possibility of negotiation.

By default, unless special conditions have been agreed in advance by INCAPS DESIGN, no discounts will be granted.

In the event of refusal to pay in advance or to provide guarantees, INCAPS DESIGN may refuse to honour the order or delivery without the customer being able to claim a refusal to sell or claim any compensation.

INCAPS DESIGN reserves the right to apply special terms and conditions of sale, on an exceptional basis or ‘imposed’ by the very status of certain client companies with which INCAPS DESIGN may be required to work, without being accused of discrimination by other purchasers.

Since 1 January 2009, in accordance with the Economic Modernisation Act of 4 August 2009, the agreed payment period for sums due may not exceed 45 days from the end of the month or 60 days from the date of issue of the invoice.

If the payment terms are not met or if facts are known that suggest a significant deterioration in the customer’s financial situation, INCAPS DESIGN is entitled to make further deliveries dependent on advance payment or the provision of corresponding guarantees. In the event of refusal, refer to Article 3-8.

4- Guarantees, complaints, compensation.

4-1 With regard to colour conformity, for orders of up to 3,000 items, the fabric cannot be dyed, and INCAPS DESIGN can therefore only guarantee that the colour chosen by the customer will be accurate to within 8/10ths.

With regard to restocking, as the fabric is only stored in small quantities, there may be a slight difference in colour.

For orders of more than 3,000 pieces, the fabric will be dyed to the chosen Pantone colour, however INCAPS DESIGN reserves the right to a 1/10th error.

With regard to font size, the customer is informed at the time of ordering of the minimum height to be respected in order to achieve an aesthetic result, and must approve the samples provided. After validation and upon receipt of the products, the customer may not contest the final result if it complies with their request and validation.

If an error has occurred that does not fall under 4-1 and 4-2, due to INCAPS DESIGN, the error must be reported in accordance with 2-5 and must be proven by any means. Depending on the error in question and the quantity produced, the customer will be offered either a reproduction or a commercial discount negotiated between the two parties. Under no circumstances may the Customer claim termination of the contract.

5- Right of withdrawal.

Article L 121-20 of the French Consumer Code gives the customer the right to withdraw from the contract within seven days.

The following, among others, are excluded from the right of withdrawal under Article L.121-20-2:

contracts for the provision of services whose performance has begun, with the consumer’s agreement, before the end of the seven-day period.

In particular:

contracts for the supply of goods made to the consumer’s specifications or clearly personalised or which, due to their nature, cannot be returned or are liable to deteriorate or expire rapidly.

As our products are 100% customisable, each order is specific and meets the criteria submitted by the customer exactly, they are therefore by definition excluded from the right of withdrawal and the customer cannot therefore exercise this right at any time after confirming their order.

6- Data protection and intellectual property.

6-1 The customer is hereby informed that we record and process confidentially the personal data collected in the course of our commercial activity and the customer data necessary for the conduct of business, in accordance with the Data Protection Act.

However, unless there is a confidentiality clause or an express request from the customer, INCAPS DESIGN reserves the right to publish samples of the models manufactured on communication media, in particular on its website and at trade fairs, solely as examples of its expertise and references, and therefore limited to a technical description of the models.

6-2 All technical and/or graphic documents provided to our clients remain the exclusive property of INCAPS DESIGN, which is the sole owner of the intellectual property rights to these documents.

6-3 The website www.incaps-design.com and its components are protected by intellectual property law.

Any reproduction is prohibited without express prior authorisation. Any use under other conditions constitutes an infringement of copyright as provided for and punished by the provisions of the Intellectual Property Code. The use, exploitation or transfer, by any means whatsoever, of any technical and/or graphic document created by INCAPS DESIGN constitutes an infringement and is prohibited.

6-4 All technical and/or graphic documents provided by our clients to INCAPS DESIGN shall remain their exclusive property. INCAPS DESIGN cannot be held liable for any fraudulent use of a trademark. If the client submits a personal design or influences the product (text customisation), they guarantee INCAPS DESIGN that the text and design are free from third-party rights. In this case, any violations of copyright, personality rights or naming rights are entirely the responsibility of the client. The client also guarantees that they are not infringing any other third-party rights by customising the product.

6-5 The customer shall indemnify INCAPS DESIGN against any claims and rights asserted on the grounds of infringement of such third-party rights. The customer shall reimburse INCAPS DESIGN for all defence costs and other damages incurred.

7- Disputes.

7-1 Any issue relating to this contract and the sales it governs that is not covered by the general terms and conditions of sale shall be governed by French law.

7-2 Any dispute shall be submitted to the Commercial Court of MONTPELLIER.