FLINT GROUP FLEXOGRAPHIC PRODUCTS - GENERAL TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale are referred to herein as the
later than 15 days after delivery of notice of termination, subject to the right of
“Terms.” Each contract document that incorporates these Terms, together with
1.
reinstatement. If Seller breaches any term of the Contract or any contractual
the Terms and any schedules, exhibits or other documents incorporated by
obligation in favor of Buyer, Buyer’s exclusive remedy for breach shall be to
reference in such contract document, is referred to herein as the “Contract.”
terminate the contract and, with respect to any Product that has not been
Each product referred to in the Contract is referred to below as a “Product.” The
shipped, to receive a refund of the price of the order, if previously paid; provided,
Contract contains the entire and exclusive agreement between the parties
however, Buyer shall give Seller written notice of Seller’s breach and Seller shall
regarding the sale and purchase of each Product referenced in the Contract.
have 30 days after receipt of written notice to cure such breach. Notwithstanding
Unless otherwise expressly provided in a Contract document, if any term,
any provision in the Contract, Seller shall have no obligation to pay any rebate,
condition or other provision contained in any schedule, exhibit, or other
issue any credit or make any other payment of any kind to Buyer unless Buyer is
document expressly incorporated by reference in the Contract is in any way
fully in compliance with its payment and other obligations under the Contract and
inconsistent with or creates an ambiguity concerning the terms of such Contract
any other contractual obligation in favor of Seller. In addition, in the event that
document, these Terms shall control. No addition to, or waiver, alteration, or
Buyer fails to make any payment when due, Seller shall have the right to offset
modification of the Contract shall be valid unless made in a writing signed by an
any and all outstanding payment obligations or other indebtedness of Buyer to
authorized representative of each party specifically referring to the Contract.
Seller against any outstanding payment obligations or other indebtedness that
There
Seller or any of its affiliates may owe Buyer.
are
no
understandings,
inducements,
commitments,
conditions,
4.
representations or warranties of any kind, whether direct, indirect, collateral,
Failure of Seller to make, or Buyer to take, any one or more
express or implied, oral or written, from Seller to Buyer, other than as contained
deliveries when due, if caused by (a) fire, storm, flood, strike, labour dispute,
in this Contract. Acceptance or use by Buyer of a shipment of Product after the
lockout, accident, act of war or terrorism, national emergency, riot, civil
commotion, embargo or similar circumstances, (b) any regulation, law, or
Effective Date, but before the Contract is signed by either party or before Buyer
restriction of any governmental department, commission, board, bureau, agency,
otherwise makes a definite and timely act or expression of acceptance, shall
court, or other instrumentality of any supranational organization of sovereign
constitute acceptance of the terms of the Contract as to that shipment.
states, country, state, province, territory, commonwealth, municipality, or other
Unless a firm price is expressly set forth on the cover page to this
political subdivision thereof (a “Governmental Authority”), any seizure or
Contract, (a) the price applicable to any order for Products purchased by Buyer
requisition of Product by any Governmental Authority, or any compliance with a
under the Contract shall be the price then in effect for each such Product on the
demand or request for such Product for purposes of national or supranational
date of shipment of such order, (b) all prices for Products are subject to change
defense, (c) inability of Seller to obtain any required raw material, energy source,
without prior notice and (c) Buyer expressly agrees and acknowledges that this
equipment, labour or transportation, at prices and on terms deemed (by Seller) to
Contract does not and shall not provide a firm price for any Product to be
be practicable, from Seller’s usual sources of supply, or (d) any other cause or
purchased hereunder. All claims by Buyer shall be made by written notice to
contingency beyond the reasonable control of that party (whether or not of the
Seller in accordance with the provisions of Section 8 of these Terms, and no
same kind or nature as the causes or contingencies above enumerated), shall
offset or deduction from any invoice is permitted to compensate for claims
not subject the party failing to perform to any liability to the other during the
against Seller. Buyer hereby waives any and all existing or future claims and
period such inability to make or take delivery shall exist.
2.
5.
offsets against the full purchase price of Product or any other payments due
hereunder.
In addition to the purchase price, Buyer shall pay Seller any and all
governmental taxes, charges or duties of every kind (excluding any tax based
Acceptance by Seller of bank draft, check, or other media of
payment is subject to immediate collection of the full face amount thereof.
upon Seller’s income) that Seller may be required to pay with respect to the
Acceptance by Seller of partial payment does not in any way limit Seller’s right to
production, processing, transportation, export, import, storage, delivery, sale, or
the remainder due by Buyer under the invoice. If full payment is not received by
promotion of Product, and with respect to any material(s) used in the
the due date, Buyer shall immediately be in default. A service charge of 18% per
manufacture of Product, including applicable sales, harmonized sales, goods
annum will be assessed on all late payments and shall be payable as
and services, use or value-added tax. If requested by Seller, Buyer shall, within
subsequently directed by Seller. Buyer shall pay all of Seller’s costs, including
10 days of that request, provide Seller with proof of such payment at the time
reasonable legal fees, of collecting any amount not paid when due hereunder or
that each such payment is made. Buyer shall provide Seller, on request, with
of otherwise enforcing the terms and conditions of this Contract.
properly completed exemption certificates for any tax or duty from which Buyer
3.
claims exemption.
If Buyer breaches any term of the Contract or any other contractual
6.
obligation in favor of Seller, (a) Seller may choose to defer any or all further
Seller will use reasonable diligence to ship Products to Buyer as
shipments or other performance under the Contract and performance of any
soon as reasonably practicable after acceptance of an order. Any estimated
other contractual obligation in favor of Buyer until Buyer cures its breach, and (b)
time of delivery provided by Seller is an estimate only and Seller shall not be
Seller may, by delivery of written notice to Buyer describing the breach,
liable for delayed delivery or non-delivery due to those causes listed in Section 4
immediately terminate the Contract and any other contractual obligation to
herein. If applicable, Seller will provide to Buyer a Material Safety Data Sheet
Buyer; provided, that Buyer shall have ten days after receipt of the written notice
(“MSDS”) for each Product delivered to Buyer. Buyer assumes full liability and
to reinstate the Contract (and any other terminated contractual obligations) by
responsibility for compliance with the above-referenced information and
curing the breach. In the event of a termination, all outstanding payment
precautions, and with all laws, statutes, orders, ordinances, regulations and by-
obligations or other indebtedness of Buyer to Seller shall be due and payable no
laws of any Governmental Authority applicable to the processing, transportation,
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shipment, export, import, delivery, unloading, discharge, storage, handling, sale
BUYER SHALL INSPECT THE PRODUCT SUPPLIED HEREUNDER
and use of each Product including, without limitation, the Corruption of Foreign
IMMEDIATELY AFTER DELIVERY. BUYER'S FAILURE TO GIVE NOTICE TO
Public Officials Act and to the extent applicable the Foreign Corrupt Practices Act
SELLER OF ANY CLAIM WITHIN THIRTY (30) DAYS AFTER THE DATE OF
of the United States, and Canadian economic sanctions and export control laws
DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF THE
and to the extent applicable United States economic sanctions and export control
PRODUCT AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT
laws; in particular, without limiting the generality of the foregoing, Buyer shall not
THERETO.
resell or ship to persons on the anti-terrorism and sanctioned list of individuals
9.
Since Seller has no control over Buyer's (or others') use, disposition,
and entities complied by the Office of Superintendent of Financial Institutions in
subsequent processing, admixing or reaction of any Product with other products,
Canada and the Denied Parties List of the United States (in both cases as
chemicals or materials or other conduct related to these Terms, Buyer assumes
defined under the referenced economic sanctions, export control, anti-terrorism
the entire liability and responsibility therefor and agrees to protect, defend and
and criminal laws). Buyer further agrees to indemnify, protect, defend and hold
hold harmless Seller from and against all Claims associated therewith including,
harmless Seller from and against all claims, demands, causes of action,
without limiting the generality of the foregoing, (a) Claims associated with
damages, losses, liabilities, costs, expenses (including punitive damages and
infringement of any third party’s intellectual property rights, patents on processes
reasonable legal fees), penalties, obligations, liabilities, liens and judgments
practiced by Buyer or patents on products made by Buyer and (b) Claims related
(each, a “Claim”) associated with the processing, possession, ownership,
to breach or failure of any other representation, warranty, condition, covenant or
leasing, maintenance, transportation, shipment, export, import, delivery,
agreement of Buyer in the Contract.
unloading, discharge, storage, handling, sale or use of any Product after delivery
10.
All drawings, know-how, designs, specifications, inventions, devices,
that is (i) inconsistent with any information provided to Buyer or (ii) in violation of
developments, processes, copyrights and other information or intellectual
any applicable law, statute, order, by-law or regulation of any Governmental
property disclosed or otherwise provided to Buyer by Seller, or otherwise related
Authority.
to the Products, and all rights therein (collectively, “Intellectual Property”) will
Seller assumes no liability for failure of discharge or unloading
implements or materials used by Buyer whether or not supplied by Seller.
7.
remain the property of Seller and will be kept confidential by Buyer in accordance
ANY TECHNICAL ADVICE FURNISHED OR RECOMMENDATION
with these Terms. Buyer shall have no claim to, nor ownership interest in, any
MADE BY SELLER OR ANY REPRESENTATIVE THEREOF CONCERNING ANY
Intellectual Property and such information, in whatever form and any copies
USE OR APPLICATION OF ANY PRODUCT IS BELIEVED TO BE RELIABLE
thereof, shall be promptly returned to Seller upon written request from Seller.
BUT SELLER MAKES NO WARRANTY, REPRESENTATION OR CONDITION,
Buyer acknowledges that no license or rights of any sort are granted to
EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, AS TO ITS ACCURACY
Purchaser hereunder in respect of any Intellectual Property.
OR COMPLETENESS OR OF THE RESULTS TO BE OBTAINED. WITH
11.
All information furnished or made available by Seller to Purchaser in
REGARD TO ANY PROCESSING OF ANY PRODUCT, BUYER ASSUMES FULL
connection with the subject matter of these Terms or of Buyer’s Contract,
RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION
expressly including the foregoing, shall be held in confidence by Buyer. Buyer
OF SUITABILITY OF PRODUCT FOR ITS INTENDED APPLICATION OR USE.
agrees not to use such information or disclose such information to others without
SELLER MAKES NO WARRANTY, REPRESENTATION OR CONDITION,
Seller’s prior written consent. The obligations in this paragraph will not apply to
EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, AS TO THE ACCURACY
any information which (a) at the time of disclosure was or thereafter becomes,
OR COMPLETENESS, OR OF THE RESULTS TO BE OBTAINED FROM, ANY
generally available to the public by publication or otherwise through no breach by
TECHNICAL ADVICE FURNISHED OR RECOMMENDATION MADE BY SELLER
the Buyer of any obligation herein, (b) the Buyer can show by written records
OR ANY REPRESENTATIVE THEREOF CONCERNING ANY USE OR
was in the Buyer’s possession prior to disclosure by Seller, or (c) is legally made
APPLICATION OF ANY PRODUCT. WITH REGARD TO ANY PROCESSING OF
available to the Buyer by or through a third party having no direct or indirect
ANY PRODUCT, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY
confidentiality obligation to Seller with respect to such information.
CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF PRODUCT
FOR ITS INTENDED APPLICATION OR USE.
12.
If at any time the financial responsibility of Buyer, or the credit risk
SELLER MAKES NO
involved, shall become unsatisfactory to Seller, Seller may require cash or
WARRANTY, GUARANTEE OR CONDITION OF ANY KIND, EXPRESS,
satisfactory security prior to subsequent shipments or deliveries hereunder. The
IMPLIED, STATUTORY OR COLLATERAL, BY FACT OR LAW, OTHER
election by Seller to require such cash or security shall not affect the obligation of
THAN SELLER’S OBLIGATION TO DELIVER PRODUCT COMPLYING WITH
Buyer to take and pay for the contracted Products.
SELLER'S
PUBLISHED
SPECIFICATIONS
REFERENCED IN THE CONTRACT).
(OR
AS
OTHERWISE
13.
SELLER MAKES NO WARRANTY,
The Contract shall bind and inure to the benefit of the successors
and assigns of the respective parties.
Buyer shall not assign, delegate,
GUARANTEE OR CONDITION, EXPRESS, IMPLIED, STATUTORY OR
sublicense, transfer or pledge any of its rights, duties or obligations in whole or
COLLATERAL, OF FITNESS FOR A PARTICULAR PURPOSE OR OF
part under the Contract or any order pursuant thereto to any other party without
MERCHANTABILITY OTHER THAN AS STATED HEREIN.
Seller’s prior written consent. In order that the parties may fully exercise their
8.
EXCLUSIVE
rights and perform their obligations arising under the Contract or these Terms,
REMEDY FOR ANY CAUSE OF ACTION ASSOCIATED WITH THE
any provisions of the Contract or the Terms that are required to ensure such
CONTRACT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY
exercise or performance (including any obligation accrued as of the termination
OR
date) shall survive the termination of the Contract or the Terms.
ANY
SELLER'S
OTHER
TOTAL
LEGAL
LIABILITY
THEORY
IS
AND
BUYER'S
EXPRESSLY
LIMITED
TO
REPLACEMENT OF NONCONFORMING PRODUCT OR PAYMENT IN AN
14.
The Contract shall take effect and be construed in accordance with
AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE SPECIFIC
the laws of Ontario and the laws of Canada applicable therein. Buyer irrevocably
PRODUCT FOR WHICH DAMAGES ARE CLAIMED, AT SELLER'S OPTION.
consents to the jurisdiction of all provincial and federal courts sitting in Toronto
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY OTHER DAMAGES
and agrees that venue for any legal action brought in connection with the
INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL,
Contract shall lie exclusively in such courts, but excluding its conflict of laws
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT
principles. Failure of either party to exercise any right it has under the Contract
OF
INCLUDING
on one occasion shall not operate or be construed as a waiver by such party of
NEGLIGENCE AND STRICT LIABILITY OR ANY OTHER THEORIES OF LAW.
its right to exercise the same right on another occasion or any other rights it has.
BREACH
OF
CONTRACT,
WARRANTY,
TORT,
Any waiver must be in a writing signed by the waiving party. In the event that any
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provision of the Contract shall be adjudicated to be invalid or unenforceable, it is
the parties’ intent that the affected provision or portion thereof will be deemed
deleted only to the extent of the invalidity or unenforceability, and the remainder
of the provision and the other terms of this Contract shall remain in full force and
effect. Nothing in the Contract shall be construed as creating any direct or
beneficial right in or on behalf of any third party.
15.
All notices, amendments, requests, consents, approval, waivers and
other communications hereunder shall be in writing and shall be deemed
effectively given to another party on the earliest of the date (a) if by hand delivery
or overnight courier, upon receipt thereof, or (b) if mailed, three days after
deposit in the mail, postage prepaid, registered mail return receipt requested. All
notices hereunder shall be addressed to the street address given on the cover
page hereto or such other address as a party hereto may designate and so notify
the other party hereto in accordance with this Section 15.
16.
Seller and Buyer are independent contracting parties, and nothing in
this Contract shall be construed as making either party the representative, agent,
fiduciary, trustee, beneficiary, broker, or mandatary of the other party.
17. The parties hereto confirm that it is their wish that this Contract, as well
as all product labelling, descriptions, safety warnings, warranties, packaging,
product guides, communications and other documents relating hereto, including
all notices, have been and shall be made and/or drawn up, as applicable, in the
English language only. Les parties aux présentes confirment leur volonté que
cette convention, de même que tous les emballages, étiquetages, decriptions,
notices de sécurité, garanties, guides d’utilisation, communications et documents
qui s’y rattachent, y compris tous avis, soient rédigés en langue anglaise
seulement. To the extent that Buyer is required, pursuant to the Quebec Charter
of the French Language R.S.Q., chapter C-11 (as applicable), to use or to
provide to any person, including customers and employees, translations or
French version of any of the above documents, or of any other materials,
supplies, documents, communications, notices, authorizations, manuals, plans or
specifications, Buyer acknowledges and agrees that it is Buyer’s sole
responsibility to comply, at its sole costs and with Seller’s prior consent, with the
Quebec Charter of the French Language or such other related language law and
to bear the cost of any necessary or desired translation of these items, and
provided further, that any and all such translations and the copyright and trademarks therein and thereto shall be Seller’s exclusive property.
Buyer shall
execute such assignment(s) or other document(s) or instrument(s) as Seller
deems necessary or appropriate to vest such ownership rights in Seller and
waving moral or author’s rights.
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