General Terms and Conditions for the Sale of Goods

1. Applicability

1. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Tempo Flexible Packaging Inc. (the “Seller”) to [Customer Name.] (the “Buyer”).
2. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

2. Delivery

1. The Seller does not guarantee delivery on a specific date and time.
2. Unless otherwise agreed in writing by the parties, the Seller shall deliver the Goods to (the “Delivery Point”) using the Seller’s standard methods for packaging and shipping such Goods. The Buyer shall take delivery of the Goods upon the Seller’s notice that the Goods have been delivered to the Delivery Point. The Buyer shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Goods at the Delivery Point.
3. The Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to the Buyer. Each shipment will constitute a separate sale, and the Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the Buyer’s purchase order.
4. If for any reason, the Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to the Seller’s notice that the Goods have been delivered at the Delivery Point: (i) risk of loss to the Goods shall pass to the Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) the Seller, at its option, may store the Goods until the Buyer picks them up, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. Storage shall be at a cost of $50 per pallet on a 28-day cycle and payment for the corresponding invoice must be paid per the terms of the corresponding invoice.

3. Non-Delivery

1. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Tempo Flexible Packaging Inc. (the “Seller”) to [Customer Name.] (the “Buyer”).
2. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

4. Quantity

With respect to the quantity of the Goods delivered, the Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Quote adjusted pro rata and, without limiting the generality of the quantities as outlined in “Appendix A”.

5. Shipping Terms

The Seller shall deliver the Goods free on board (FOB Origin).  The Seller shall not be responsible for any late delivery charges, fees or fines.

6. Title and Risk of Loss

Title and risk of loss passes to the Buyer upon delivery of the Goods at the Delivery Point.

7. Amendments and Modifications

These Terms may be amended or modified in writing and signed by both parties.

8. Inspection and Rejection of Non-Conforming Goods

1. The Buyer shall inspect the Goods upon receipt (“Inspection Period”). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by the Seller. “Non-Conforming Goods” means that the product shipped is different than identified in the Buyer’s Quote.
2. If the Buyer notifies the Seller of any Non-Conforming Goods within thirty (30) days, the Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods; or (ii) credit or refund the Price for such Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by the Buyer in connection therewith. Should the Buyer not notify the Seller within those thirty (30) days, the Buyer forfeits any claim(s) for non-conforming goods.
3. The Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 8(b), all sales of Goods to the Buyer are made on a one-way basis and the Buyer has no right to return the Goods purchased under this Agreement to the Seller.

9. Price

1. The Buyer shall purchase the Goods from the Seller at the price set forth in the Seller’s Quote (the “Price” or “Prices”) plus other charges as outlined in 9(b) below;
2. All Prices are exclusive of all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs, and taxes; provided that, the Buyer shall not be responsible for any taxes imposed on, or with respect to, the Seller’s income, revenues, gross receipts, personnel, real or personal property, or other assets.  Prices are subject to change without notice at the Sellers sole discretion should the Sellers costs for the goods in question, be increased directly or indirectly by any of the aforementioned reasons (as outlined in section 9(b)) or as a result of an over run as outlined in section 4.

10. Payment Terms

1. The Buyer shall pay all invoiced amounts due to the Seller [within thirty (30) days from the date] of the Seller’s [invoice]. The Buyer shall make all payments hereunder by [wire transfer/cheque/ACH] and in Canadian dollars.
2. The Buyer shall pay interest on all late payments at the lesser of the rate of eighteen percent 18% per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. The Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis.
3. The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller, whether relating to the Seller’s breach, bankruptcy or otherwise.

11. Limitation of Liability

1. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL THE SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE SELLER FOR THE GOODS SOLD HEREUNDER.
3. The limitation of liability set forth in Section 11(b) shall not apply to (i) liability resulting from the Seller’s gross negligence or wilful misconduct; and (ii) death or bodily injury resulting from the Seller’s acts or omissions.
4. The Buyer shall defend, indemnify, and hold harmless the Seller, its affiliates, successors and assigns, and their respective directors, officers, shareholders, employees and representatives against any and all third-party loss, injury, damage, liability claim, action, judgement, interest, award, penalty, fine, cost and expense, including reasonable legal and professional fees and costs, the cost of enforcing any right to indemnification hereunder, and any cost of pursuing insurance providers therefor, relating to, arising out of, or occurring in connection with the Goods sold to the Buyer, including any use or re-sale of the Goods by the Buyer or any integration of the Goods by the Buyer in its products.

12. Insurance

During the term of this Agreement, the Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than Five Millon Dollars ($5MM) with financially sound and reputable insurers. Upon the Seller’s request, the Buyer shall provide the Seller with a certificate of insurance from the Buyer’s insurer evidencing the insurance coverage specified in these Terms.  Proof of insurance shall be provided to the seller on an annual basis.

13. Compliance with Law

The Buyer shall comply with all applicable laws, regulations, and ordinances. The Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Buyer shall not re-sell or use the Goods outside of Canada or integrate the Goods in any of its products sold outside of Canada, without the prior written consent of the Seller.

14. Termination

In addition to any remedies that may be provided under these Terms, the Seller may terminate this Agreement with immediate effect upon written notice to the Buyer, if the Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

15. Waiver

No waiver by the Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16. Confidential Information

All non-public, confidential or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, recipes, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Seller to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Seller in writing. The Seller retains all rights to and ownership of the aforementioned.  Upon the Seller’s request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.

17. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Buyer to make payments to the Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19); (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary license or consent; (k) shortages of materials, delays or defaults of suppliers or  (l) other similar events beyond the reasonable control of the Impacted Party.

18. Assignment

The Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Buyer of any of its obligations under this Agreement.

19. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

21. Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

22. Choice of Forum

Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.

23. Notices

All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.

24. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

25. Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 11 (Limitation of Liability), Section 12 (Insurance), Section 13 (Compliance with Law), Section 16 (Confidential Information), Section 21 (Governing Law), Section 22 (Choice of Forum), and this Section 25 (Survival).

Appendix A

Order Quantity Over/Under-Run Chart

2237 Industrial Park Road
Innisifil, ON
L9S 3V9

Tel: 705.436.4442 | 1.888.436.4444

Fax: 705.436.6771
Email: accounting@tempoflexiblepackaging.com