REACH Only Representatives keep their clients REACH compliant

Parties and definitions

1. CAPLINQ Europe BV: Hereafter called CAPLINQ. Legally represented by (Legal Name), (Business Address). Registered with the Chamber of Commerce in Amsterdam under number 52503208.
2. Exporter: Hereafter called the Exporter, legally represented by (Legal Name), (Legal Address). REACH contact person: (Contact Name).
3. each a “Party” and together the “Parties”
3. REACH: Regulation (EC) 1907/2006 of 18 December 2006 of the European Parliament and of the Council as corrected in corrigenda published on 30 December 2006 [and as amended from time to time].
4. EU/EEA: European Union, Norway, Iceland and Liechtenstein
5. SDS: Safety Data Sheet answering to the requirements stipulated in article 31 of REACH
6. Importer: An Exporter’s customer importing products covered by this agreement into the EU/EEA.
7. Other REACH obligations: The Importers’ obligations under REACH not regarding pre-registration or registration that are transferred to the Only Representative as meant in Art 8.2 REACH.
8. ECHA: European Chemicals Agency
9. Exporter’s Only Representative File: Dedicated part of the web based administrative tool used by CAPLINQ, containing all the information necessary for CAPLINQ to correctly pre-register and register the Exporter’s substances and to perform its duties as the REACH Service Provider to the Exporter.
10. Art 22.1 REACH: List of relevant new information and changes in status that needs to be submitted to ECHA without undue delay. Art.22 REACH is reproduced as Annex 1 to this contract.
11. Products: Mixtures or substances on their own exported to the EU/EEA by the Exporter which are listed in the Exporter’s Only Representative File and thus covered by this agreement.

I Considerations

1. REACH requires registration of most substances on their own or in mixtures, and some substances contained in articles that are imported into the EU/EEA, where ‘phase-in’ substances enjoy a time delay depending on the annually imported volume and their toxicity.
2. Legal entities based outside the EU/EEA who are exporting substances or mixtures to the EU/EEA, may not register or pre-register substances themselves. They may however, according to article 8 of REACH appoint a natural or legal person as their Only Representative.
3. An ‘Only Representative’ appointed in accordance with article 8 of REACH can only provide its service to the Exporter adequately if the Exporter provides it with all the necessary information and ensures that information is accurate, true and complete.

II Agreement

The Parties agree to the following:

1. The Exporter appoints CAPLINQ as its Only Representative in the sense of article 8 of REACH and gives CAPLINQ power of attorney to act on its behalf with regard to the obligations arising from REACH. The appointment covers the Products marketed in the EU/EEA by the Exporter as listed in the Exporter’s Only Representative File and the substances and mixtures contained in these Products. Unless otherwise agreed, packaging materials and articles as defined in REACH are not covered by this agreement.
2. CAPLINQ accepts this appointment and will do everything reasonably in its power to correctly fulfil these obligations.
3. The Exporter certifies that it is a natural or legal person established outside the EU/EEA who manufactures a substance on its own, in mixtures or in articles, formulates a mixture or produces an article that is imported into the EU/EEA and therefore answers to the requirements given in REACH Art 8.1 and is thus entitled to appoint an only representative in accordance with that article. The Exporter certifies that it has not appointed another Only Representative for any of the Products or substances listed in the Exporter’s Only Representative File in the past and that it will not do so in the future unless this contract is terminated.
4. The Parties agree to inform each other in good time of anything of relevance to the tasks to be performed by the other Party resulting from this agreement; this includes subjects not mentioned in the Exporter’s Only Representative File.
5. The Exporter agrees to pay CAPLINQ a fee as specified in quote (Quote Number) addressing the agreed tasks according to ‘Invoicing and payments’ in Annex II and understands and agrees that CAPLINQ will not perform the tasks assigned to it until payment has been received.
6. This contract enters into force upon receipt by the Exporter of CAPLINQ’s first invoice as specified below under ‘Invoicing and payments’.
7. For the purpose of the settlement of disputes arising from this agreement, the Exporter takes residence at the CAPLINQ offices in Krommenie, The Netherlands, unless and until he has communicated to CAPLINQ, in writing, another address within The Netherlands.

III Liability

1. CAPLINQ’s liabilities towards the Exporter are limited to direct damage only and to the sum invoiced by CAPLINQ over the last twelve months regarding the substance concerned. CAPLINQ’s liability is at all times maximized to € 25.000,- per case and per calendar year. Direct damage is to be understood as:
2. a. damage incurred by the Exporter and not by any third party claiming damages with the Exporter, and
3. b. resulting from omissions and mistakes by CAPLINQ.
2. The Exporter completely and unconditionally indemnifies and holds harmless CAPLINQ from and against damage claims, fines and any other financial consequences that may reasonably result from the dissemination of incorrect or incomplete or otherwise inadequate information that was provided to CAPLINQ by the Exporter, even if the Exporter does not or did not know the information to be incorrect or incomplete or otherwise inadequate. This obligation will continue to exist even after the contract has been terminated.
3. The Exporter completely and unconditionally indemnifies and holds harmless CAPLINQ from and against damage claims, fines and any other financial consequences that may reasonably result from liability for damages caused by any of its Products imported and/or sold in the EU/EEA by the Exporter or by any other entity.
4. Any CAPLINQ liability towards the Exporter is nil if the Exporter does not within one year after termination of this contract provide CAPLINQ with a substantiated claim for compensation of damages.

IV Obligations of CAPLINQ

CAPLINQ will perform the following tasks:

1. If required by the Exporter, CAPLINQ will confirm to the Exporter’s customers that it has agreed to be the Exporter’s Only Representative and that these customers REACH obligations with regard to the substances and mixtures purchased from the Exporter, as mentioned in the Exporter’s Only Representative File, have been reduced to those of a ‘Down Stream User’.
2. If required by the Exporter, CAPLINQ will inform the Importers of the actual pre-registration and registration of the substances on their own and the substances contained in the Products purchased from the Exporter, as mentioned in the Exporter’s Only Representative File.
3. If required by the Exporter, CAPLINQ will provide the Importers a general information package about the pre-registration and registration and, by phone or e-mail, answers to their questions concerning the procedural aspects of the pre-registration and registration of the substances and substances in the Products imported by these Importers as mentioned in the Exporter’s Only Representative File.
4. Once the chemical names and the CAS or Einecs numbers of the substances listed in the Exporter’s Only Representative File are unambiguously known, CAPLINQ will correctly pre-register these substances without delay.
5. CAPLINQ will without delay inform the Exporter of the pre-registration and registration of the substances listed in the Exporter’s Only Representative File and provide it with the allocated pre-registration and registration numbers.
6. CAPLINQ will check the substances listed in the Exporter’s Only Representative File for their applicable registration deadline and possible exemptions from registrations and advise the Exporter with regard to the necessary registrations; all in good time before the applicable registration deadline.
7. If the Exporter so requires, CAPLINQ will correctly register substances once the registration dossiers for these substances or where applicable the letters of access for joint submissions and any additional information required is complete and made available to CAPLINQ, and CAPLINQ has received from the Exporter its fee for the registration and sufficient funds to pay the ECHA registration fee and if applicable the Letter of Access invoice.
8. CAPLINQ will submit an update of the registration of the Exporter’s substances as required under REACH Article 22.1 without undue delay after the information has been received from the Exporter and CAPLINQ has received from the Exporter its fee for the update and sufficient funds to pay the applicable ECHA fee and if applicable the consortium costs.
9. CAPLINQ will hold the information that Only Representatives are legally required to hold, such as the names and addresses of all Importers, the Products imported by them and the imported quantities of substances.
10. CAPLINQ will within the time allotted and/or statutory or contractual time limits answer to rightful inquiries from competent authorities about the Products, substances, Importers and the dissemination of information as obliged under REACH.
11. CAPLINQ will not request from the Exporter more information than is necessary for the purpose of pre-registration, registration and compliance with ‘Other REACH obligations’. Where possible, CAPLINQ will particularly avoid to request detailed information from which the exact formulation of a mixture or articles can be derived.
12. CAPLINQ will keep track of the obligations to be fulfilled by it, will keep the Exporter updated on the state of affairs and will warn the Exporter forthwith in the case of suspected delays in the fulfilment of these obligations.
13. CAPLINQ will not disclose confidential information received from the Exporter to third parties for other purposes than fulfilling its legal obligations and the obligations under this contract. For this purpose, toxicologists, experts and cooperating consultants are not considered to be third parties.
14. For the purpose of this agreement the formulation or exact composition of the Exporter’s products, the names, contact details and purchased volumes of the Exporter’s European customers and the names and contact details of the Exporter’s suppliers are certainly considered confidential. For any other information the Exporter is required to indicate clearly if it is regarded as confidential.
15. If required by the Exporter, CAPLINQ will keep on file, free of charge, the list of substances that are not pre-registered or registered because they are exported to the EU in quantities smaller than one ton per year. This service is limited to keeping the names of these substances and the reason for them not being pre-registered or registered on file.

V Obligations of the Exporter

1. In accordance with REACH Art.8.3 the Exporter shall inform all the Importers importing the Products listed in the Exporter’s Only Representative File of the appointment of CAPLINQ as the Exporter’s Only Representative. The Exporter shall inform CAPLINQ of this action forthwith.
2. The Exporter shall provide CAPLINQ with the information required in the Exporter’s Only Representative File. This information shall be provided in good time to allow CAPLINQ to provide the agreed services.
3. The Exporter shall inform CAPLINQ forthwith of changes as mentioned REACH Art 22, even if the relevant substance has not yet been registered.
4. The Exporter accepts that for the purpose of registration, authorisation and other non-routine REACH obligations, it will have to provide information to CAPLINQ that exceeds the information demanded in the Exporter’s Only Representative File.
5. The Exporter also accepts that the information required according to the Exporter’s Only Representative File may exceed the information strictly required for pre-registration and registration purposes where CAPLINQ requires this additional information for the identification and fulfilment of its Other REACH obligations.
6. Where information required according to the Exporter’s Only Representative File is not available, not certain to be correct, possibly incomplete or inadequate for the purpose of fulfilling the tasks assigned to CAPLINQ, the Exporter shall inform CAPLINQ forthwith and provide a proposal on how to improve the quality of the information in good time or request CAPLINQ to collect the information as an additional service.
7. Where a Product requires a Safety Data Sheet (SDS) or extended Safety Data Sheet (eSDS) in accordance REACH with article 31, the Exporter will compile this SDS or eSDS, provide it to the Importers, and record this dissemination; all in accordance with REACH article 31. The Exporter will supply CAPLINQ with a copy of these SDS, eSDS and with easy access to the dissemination records. The Exporter may require CAPLINQ to compile and distribute the SDS or eSDS. This service is to be invoiced additionally.
8. The above does not apply if the Importers compile the SDS or eSDS and put these at the disposal of the Exporter and CAPLINQ.
9. The Exporter will check all information sent to it by CAPLINQ for correctness and completeness and will warn CAPLINQ forthwith in the case of suspected irregularities.
10. The Exporter will keep track of the obligations to be fulfilled by CAPLINQ and warn CAPLINQ forthwith in the case of suspected delays in the fulfilment of these obligations by CAPLINQ.
11. The Exporter will provide all information in Dutch or English and be responsible for the quality of any translation. Mistakes or obscurities in a translation are for the risk of the Exporter.

VI Exclusivity

1. During the term of this Agreement, the Exporter undertakes to appoint CAPLINQ as his Only Representative exclusively and undertakes to not appoint any other natural or legal person as his Only Representative for the same Substance and/or Preparation and/or Article.
2. This Agreement shall not prevent, restrain or refrain CAPLINQ to offer, perform Only Representative services to any other natural or legal person, even for the same Substance and/or Preparation and/or Article of another Manufacturer or Importer established outside the Community, without prejudice to the provisions of the obligations of the Confidentiality Agreement.

VII Prices and payment

1. Prices are as listed in (Quote Number). These prices cover only the services described above. They do not cover any additional work by CAPLINQ such as the representation of the Exporter in consortia, drafting registration dossiers or producing Safety Data Sheets and Exposure Scenario’s. Additional work will be quoted and invoiced separately.
2. Prices will annually be adjusted for inflation as specified by the Dutch Consumer Price Index.
3. Where changes in the categorisation of substances or in official policy regarding pre-registration, registration, administrative requirements or any other obligations of the Only Representative increase the CAPLINQ workload, new prices will be agreed between CAPLINQ and the Exporter.
4. The Exporter shall make the payments within two weeks after being invoiced by CAPLINQ according to the following schedule:
5. • First year: 100% upon signing of the contract.
6. • Later years: 100% before commencement of the period
7. • Registration: 100% before registration
5. There will be no reimbursement in case of termination of the contract if the contract is terminated due to fault of the Exporter. In other cases of termination of the contract, the Exporter shall be reimbursed the Only Representative fee pro rata (for example, if the contract is terminated after 9 of the 12 months in total, the Exporter will be reimbursed 25% of the Only Representative fees it has paid to CAPLINQ. Other costs such as consultancy fees, registration fees, ECHA fees and cost of Letters of Access, will not be reimbursed).
6. CAPLINQ will pay registration fees to ECHA, invoices for Letters of Access and other similar out-of-pocket costs on behalf of the Exporter after having received the adequate amount from the Exporter.

VIII Renewal and termination of theis contract

1. The initial duration of the contract is two years. After that period the contract is renewed automatically every twelve months for a twelve-month period unless it is terminated in writing by either Party at least 90 days before the renewal date.
2. CAPLINQ has the right to terminate this contract unilaterally at any time if the information that is to be provided by the Exporter is not reaching CAPLINQ in good time, is or seems to be incorrect, incomplete or inadequate, if this information does not allow an adequate assessment of CAPLINQ’s liabilities or if CAPLINQ’s liabilities are deemed disproportionate by CAPLINQ, and in all aforementioned cases after having been given a reasonable period of time, the Exporter fails to remedy this. CAPLINQ also has the right to terminate this contract unilaterally at any time if the Exporter does not in good time follow up CAPLINQ’s recommendations with regard to REACH obligations or in any way does not or does not seem to act in good faith.
3. The Exporter has the right to terminate this contract unilaterally in writing at any time if CAPLINQ is in default regarding any of its obligations as from this contract and, after having been given a reasonable period of time, fails to remedy this.
4. In any case of termination, CAPLINQ will cooperate fully in the transfer of the necessary data, documents in its possession and ownership of the pre-registrations and registrations to another Only Representative of the Exporter’s choice, subject to fulfilment by the Exporter of all its obligations to CAPLINQ, financial and otherwise, and a release by the Exporter of CAPLINQ from any liability resulting from this contract or services provided by CAPLINQ.
5. Termination of this contract does not end CAPLINQ’s obligation to safeguard the Exporter’s proprietary information. Upon termination of this contract CAPLINQ will destroy or return all information provided by the Exporter to the extent that this is legally possible, subject to fulfilment by the Exporter of all its obligations to CAPLINQ, financial and otherwise, and a release by the Exporter of CAPLINQ from any liability resulting from this contract.
6. Upon termination of this contract the Exporter will inform the Importers of the Products mentioned in the Exporter’s Only Representative File that CAPLINQ is no longer its Only Representative and inform CAPLINQ of this action. CAPLINQ reserves the right to inform the Importers by itself if the Exporter does not do so in good time. CAPLINQ will inform ECHA of the same and thus de-activate the pre-registrations and registrations of the substances mentioned in the Exporter’s Only Representative File, unless these pre-registrations and registrations have been transferred to another Only Representative or an Importer of the Exporter’s choice.

IX General Stipulations

1. Changes to this contract and the scope of CAPLINQ’s appointment will be agreed in writing. Such agreement is to include any changes in CAPLINQ’s remuneration.
2. This contract is subject to Netherlands law. Disputes resulting from this contract will be subject to the rulings of the district court in Rotterdam in the Netherlands.