These general terms and conditions of sale (“Terms”) apply to contractual relationships in respect of the sale of film (“Products”) by PolyExpert® Inc. or any of its subsidiaries or affiliated companies (“PolyExpert®”) to the Customer (“Customer”). Variations to these Terms will only be enforceable if accepted by PolyExpert® in writing.
2. OFFERING AND ORDERING:
Customer’s submission of an order (“Order”) in response to PolyExpert®’s estimate or quotation (“Offer”) constitutes Customer’s unconditional acceptance of these Terms and implies Customer’s renunciation of its own terms and conditions. Each Order responding to an Offer must be duly acknowledged by PolyExpert® in writing (“Order Confirmation”). A binding contract (“Contract”) requires an Order Confirmation following an Order in response to an Offer to which these Terms apply. Each Offer shall be valid during fifteen (15) calendar days from the date it is made, unless otherwise stated in the Offer. Any variation to an Offer shall only be binding when confirmed by PolyExpert® in writing. Any variation or cancellation of a Contract shall be subject to PolyExpert®’s acceptance in writing. In case of variation or cancellation of a Contract by Customer, PolyExpert® shall be entitled to the price corresponding to all ordered Products, without prejudice to additional claims, including but not limited to compensation for any ensuing direct or indirect losses.
Unless otherwise specified in writing by PolyExpert®, delivery of all Products is ruled by the Incoterms 2010®, Ex Works (EXW). The place of delivery may be specified by PolyExpert® on the Order Confirmation. Delivery within 15 days after the date specified in an Order Confirmation shall be deemed timely delivery. Products are packed according to PolyExpert®’s standards, unless otherwise agreed in the Contract. Delivery schedules are estimates and any delays shall not entitle Customer to cancel or suspend the Order nor to compensation for delay. If Customer is prevented from taking or accepting delivery on the specified delivery date as mentioned in the Order Confirmation, Customer shall pay the agreed price as if the delivery had taken place. Storage costs may be charged by PolyExpert® to Customer should it fail to take Products upon delivery. Customer bears all risks of loss of or damage to the Products from the date they have been delivered at the place of delivery. Delivery or tender of a quantity which does not vary more than five percent (5%) of the contract weight, greater or less than contracted for, shall constitute performance under this contract and payment shall be made on the actual pounds invoiced. The Products shall be billed at scale weight but net of packaging and wrapping materials. Expect notice of complaint received by email, fax or mail within fifteen (15) days following the date of delivery, Customer shall be deemed to have accepted the Products without reservation. In addition, in situations where Customer submits Orders subsequent to an initial Order, and that such subsequent Orders are processed by PolyExpert® before Customer has examined or processed the Products delivered under the initial Order, Customer shall be deemed to have accepted all Products produced by PolyExpert® (or under production) pursuant to all Order Confirmations subsequent to the initial Order, whether or not the Products have been delivered to Customer. Title to, and full ownership of, the Products shall remain with PolyExpert® until the payment of such Products has been made in full. Customer undertakes that it will not, without PolyExpert®’s express prior written consent, dispossess itself or otherwise pledge or permit any third party to establish a proprietary interest on the Products before Customer has paid for the Products in full, including due costs and indemnities. Customer must at all times ensure that the Products are identified as PolyExpert®’s Products and that they should not be commingled with other products or made subject to a claim by any third party until paid in full. Should Customer fail to pay the price at due date, PolyExpert® may, at any time prior to payment in full, recover the Products at Customer’s expenses. The right of recovery shall be without prejudice to any claim for damage or loss suffered by PolyExpert® in this regard.
4. PRICE AND PAYMENT:
Unless otherwise agreed in the Contract, the prices are quoted in Canadian Dollars. Prices are firm during the validity term of the Offer only. Payment shall be made net and without discount, onto one of PolyExpert®’s bank accounts mentioned on the remittance document. All invoices must be paid within thirty (30) calendar days following the invoice date, within acceptance of a credit limit. If the invoice is not paid on its due date, PolyExpert® may in addition to any other rights and remedies under applicable laws, charge an interest on the outstanding amount at the rate of 1.5% per month (19.56% per annum), or the maximum legal interest rate, whichever is higher, from and after the maturity date of said invoice. Without prejudice to any other rights and remedies, non-payment of any overdue invoice is a default that, if not remedied within fifteen (15) days of a written notice from PolyExpert®, entitles PolyExpert® amongst other measures to: (1) claim immediate payment of all other outstanding invoices; (2) suspend all ongoing Orders and deliveries until the amount due shall have been paid in full, including late interests, costs and indemnities; (3) reclaim possession of the delivered Products at Customer’s costs; (4) require financial guarantees or new payment terms for ongoing Orders; (5) terminate the Contract, without prior notice or compensation. PolyExpert® shall then be entitled to an indemnity for breach of Contract which shall at least amount to thirty percent (30%) of the total net price agreed. Any advance or down payments, whatever their value, shall be forfeited to PolyExpert®.
Exclusion of warranties: Customer agrees that there are no warranties, express or implied, given by PolyExpert® beyond the description on the Order Confirmation. PolyExpert® expressly excludes all implied warranties, including, without limitation, all warranties of merchantability and fitness for a particular purpose, as well as any warranties related to the absence of minimal contamination, physical properties or chemical variations in the thickness of the Products. It is the sole responsibility of Customer to ascertain the suitability of the Products for any use by his own sampling and testing. Customer acknowledges that PolyExpert® has not made any representation or warranty, express or implied, with respect to the title, merchantability, condition, quality, description, durability or suitability of the Products. PolyExpert® shall not be liable for normal manufacturing defects nor for customary variations from specifications. The Products may vary in shade and PolyExpert® assumes no responsibility for such variations. PolyExpert® assumes no responsibility for imperfections due to latent defects inherent in the raw materials used. In no event shall Customer be entitled to claim consequential or indirect damages, and in no event shall damages include loss of profit on contemplated use or loss of profit of any type.
All intellectual property rights of any nature (including any copyright rights, moral rights, patent or design rights whether or not registered), technology and know-how concerning the Products shall remain the exclusive property of PolyExpert®, as the case may be. Nothing in these Terms shall be construed as conveying any express or implied license, right or immunity, directly or indirectly, estoppel or otherwise, to Customer under any patent, copyright, trademark or other proprietary/intellectual rights owned or controlled by PolyExpert® or any third party. PolyExpert® assumes no liability for infringement of intellectual property rights of any third party covering any combination of any Products sold by PolyExpert® with any product, whether or not supplied or sold by PolyExpert®, or any method or process in which any Product sold by PolyExpert® may be used. PolyExpert®, at its option, may cancel this contract or any other contract with Customer for the delivery of any products, the manufacture, sale or use of which, in PolyExpert®’s opinion, infringes any patent, trademark or other intellectual property under which PolyExpert® is not licensed. Customer agrees to hold PolyExpert® harmless against all damages and expenses arising from claims for infringement of intellectual property rights on materials specifically produced upon Customer’s Order and against all damages or expenses arising from any infringement or from any misuse of any trade name, trademark, symbol, identification of material content or other labelling used by PolyExpert® at Customer’s instructions.
Customer acknowledges that all technical, commercial and financial data (including pricing) and information belonging to PolyExpert® (“Confidential Information”) which is not already in the public domain at the time it is communicated to Customer by PolyExpert® in strict confidence and remains the property and entitlement of PolyExpert®. Confidential Information may not be disclosed to a third party without PolyExpert®’s express prior written consent and may not be used for any purpose other than the fulfilling of Customer’s Order. Customer shall indemnify PolyExpert® against any and all direct, indirect and punitive damages, losses, costs and other liability arising from claims resulting from Customer’s or its own Customer’s breach or non-compliance with this provision.
8. LIMITATION OF LIABILITY:
PolyExpert® shall not be liable for any loss of profits, lost savings, loss of reputation, loss of goodwill, legal fees and expenses, indirect, incidental, punitive, special or consequential damages arising out of or in connection with the sale of any Products by PolyExpert® or the use thereof, whether or not such damages are based on tort, warranty, contract or any other legal theory – even if PolyExpert® has been advised, or is aware, of the possibility of such damages. PolyExpert® shall not be held liable for and shall not indemnify any person against any loss or damage whether such damage is direct or indirect or consequential loss, including without limitation, economic loss, interruption of work, idle assets, loss of use and production, if the damage resulted in all or part due to Customer’s fault, the person incurring damage or a person subject to the authority or under the responsibility of one of these.
All claims of any kind, nature or description are barred an waived unless made in writing, and Customer shall be deemed to have accepted the Products and its right to cancel, reject or claim damages, shall expire unless Customer’s written and particularized claim is received by PolyExpert® within sixty (60) days from the date of delivery. Within thirty (30) days after receipt of written notice of claim for defects in the Products, Customer shall make the Products available for inspection by PolyExpert® at a point in the continental United States or in the Province of Quebec (Canada) designated by PolyExpert®. Failure to do so constitutes acceptances of the Products and waiver of all claims for defect. PolyExpert® may, in its discretion, examine and accept such Products for return or make allowances agreeable to both parties. If the Products are accepted for return, PolyExpert®, at its option, may replace the Products within a reasonable time in full satisfaction of all claims of Customer.
8.2 TECHNICAL ADVICE:
PolyExpert® may, upon Customer’s request, provide technical advice with respect to the use of Products sold hereunder, to the extent that PolyExpert® has such advice conveniently available. However, it is expressly understood by Customer that PolyExpert® is under no obligation to furnish technical advice and Customer further understands that such advice is given by PolyExpert® and accepted by Customer at Customer’s sole risk. Under no circumstances shall PolyExpert® be responsible to Customer, or liable, for the advice or assistance given or the results thereof.
9. SUSPENSION AND TERMINATION
9.1 FORCE MAJEURE:
Upon due notice to Customer in writing, PolyExpert® may suspend performance of its obligations under this Contract or any other contract in the event of occurrences beyond its control and for which it is not responsible, including but not limited to fire, storm, earthquake, national or local government law, decree or regulation, strikes or other industrial action, acts of war, insurrection, civil war, terrorism or national emergency, unavailability of transport, general lack of supplies, interruption of power supplies, or any other event that can be qualified as an event of force majeure. If an event of force majeure prevents fulfilment of Customer’s Order and lasts for three consecutive calendar months, or for a total of three months in a period of six calendar months, either PolyExpert® or Customer shall be entitled to cancel all or part of the Order without any obligation whatsoever to the other party.
10. GENERAL PROVISIONS
Without prejudice to any other rights or remedies, PolyExpert® may, by written notice to Customer, terminate with immediate effect any contractual relationship with Customer, or any part thereof without liability whatsoever, if any insolvency proceedings, bankruptcy, liquidation, winding up or similar procedures are instituted against Customer, whether filed or instituted by Customer, a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer.
Customer shall not assign its rights or obligations under this Contract, nor approve a change of control of Customer, without PolyExpert®’s prior written consent. PolyExpert® may transfer the benefits of this Contract, in whole or in part, without the approval of Customer.
If one or more provisions of these Terms is found to be invalid, illegal or unenforceable (in whole or in part), the remainder of the provision and of these Terms shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision(s) had never existed.
10.4 DISPUTE RESOLUTION:
For any Customer outside Canada, unless otherwise agreed in writing, all contractual relationships between PolyExpert® and Customer shall be governed by the laws of the State of Maine to the exclusion of the application of the Vienna Convention of April 11, 1980 on international sales. Any dispute shall be submitted exclusively to the courts of the State of Maine, except Canadian customers, to the courts of the Province of Quebec (Canada), judicial district of Montreal.
PolyExpert® may deduct from any amounts due or to become due to Customer under this Contract any fees, damages or expenses which has paid or incurred and for which Customer is liable under this Contract or any other agreement between Customer and PolyExpert®.
Any notice to be given under this Contract must be in writing, may be delivered to the other party by any of the methods set out in the left hand column below, and will be deemed to be received on the corresponding day set out in the right hand column:
10.7 LANGUAGE (IF CUSTOMER IS LOCATED OR RESIDENT IN THE PROVINCE OF QUEBEC (CANADA):
The Parties confirm that it is their wish that this Agreement as well as other documents relating hereto have been and shall be drawn up in English only. Les Parties confirment leur volonté que cette convention de même que tous les documents s’y rattachant soient rédigés en anglais seulement.