1. Agreement. These terms and conditions of sale (these “Terms”) are the exclusive terms which govern the sale of any products or services (collectively “Products”) by Caplugs Holdings, Inc. (“Caplugs”) to the customer identified in the relevant agreement, quotation, work order, purchase order, order acknowledgment or invoice (“Customer”). These Terms apply to and are incorporated into any agreement to which they are attached and any quotation, work order, purchase order, or invoice accompanying these Terms (collectively, the “Agreement”). These Terms shall become effective upon the earliest of: (i) Caplugs issuing a quotation, order acknowledgement or invoice to Customer; (ii) Customer’s receipt of the Products; (iii) Caplugs’ receipt of payment in full or in part for the Products; or (iv) Customer’s and Caplugs’ execution of a written agreement regarding the sale of Products into which these Terms are incorporated.
2. Acceptance. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms, and notwithstanding Caplugs’ use of Customer’s purchase order number as an accommodation. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Any terms and conditions proposed by Customer in any product inquiry, purchase order or other document that are different from, conflict with, or add to these Terms shall be deemed to materially alter the offer and are hereby objected to and rejected by Caplugs.
3. Purchase Price. Customer shall pay Caplugs the purchase price for the Products as listed in Caplugs’ quotation, order acknowledgement or as otherwise set forth in Caplugs’ invoice. Customers located in Canada will be invoiced in Canadian dollars; all other customers will be invoiced in US dollars. Caplugs may change its prices at any time without notification; provided, however, that unless revoked prior to acceptance, prices set forth in Caplugs’ quotation shall be valid only for the period set forth in such quotation. Caplugs’ prices are exclusive of insurance, shipping, handling, and sales, use and excise taxes and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall have the sole responsibility for payment of all such insurance, shipping, handling, taxes, duties and charges with respect to the purchase of any Products. Caplugs supplies standard material certification with all shipments. Special certification requirements, if accepted by Caplugs, may be subject to additional charges.
4. Payment Terms. Customer shall pay all invoices within thirty (30) days from the date of the invoice (unless specified otherwise on the invoice). If Customer fails to make any payments when due, Customer may be charged interest of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, whichever is less, on any overdue balance. Caplugs is not obligated to extend credit or financing terms to Customer. Caplugs may in its sole discretion revoke any credit extended to Customer and require payment in full prior to Caplugs’ delivery of Products. If Caplugs retains a collection agency or legal counsel or incurs any out-of-pocket expenses to collect payments from Customer, all such costs (including lawyers’ fees and extrajudicial fees) will be added to the sums due, will bear interest at the rate set forth above, and will be the responsibility of Customer. In addition to all other remedies available under these Terms or at law (which Caplugs does not waive by exercising any rights hereunder), Caplugs shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due hereunder. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Caplugs, whether relating to Caplugs’ breach, bankruptcy or otherwise.
5. Shipment and Delivery. Delivery of all Products shall be made Ex Works Caplugs’ facility in Brampton, Ontario (“Delivery Point”), and all freight and shipping charges are the responsibility of Customer. Crating and pressure heat treated pallets may be subject to additional charges for each pallet required. Manner of shipping and routing of shipments is at the discretion of Customer unless otherwise agreed upon in writing by Caplugs and Customer. Products will be delivered within a reasonable time after receipt of Customer’s purchase order, but Caplugs shall not be liable for any delays, loss or damage in transit. Caplugs reserves the right to make delivery of Products in installments; all such installments will be separately invoiced and paid for when due.
6. Title and Risk of Loss. Title and risk of loss shall pass to Customer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Caplugs a lien on and security interest or hypothec in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. To the greatest extent permitted by law, Customer hereby waives a right to receive a copy of a verification statement registered under the Personal Property Security Act (Ontario) or any similar document under any other similar provincial legislation. With regard to Products that are returned to Caplugs, title and risk of loss remain with Customer until receipt and acceptance of the Products by Caplugs.
7. Quantities. Order quantities shall be increased or decreased to the nearest standard packaging quantity. Caplugs may change its standard packaging quantities at any time without notification. Delivery of 5% more or less than the quantity ordered shall constitute fulfillment of the order for custom closures, vinyl dip mouldings, or standard closures run in nonstandard colours or materials. Minimum order value is $50 per order. Caplugs may change minimum order values at any time without notification.
8. Cancellation. No order accepted by Caplugs may be cancelled or modified by Customer except upon the written agreement of Caplugs. In the event of cancellation or deferral of deliveries on an order, Customer assumes immediate liability for the completed part of the order and any material or tooling work performed, and Caplugs may require immediate payment of the amounts due.
9. Reliance. Caplugs may rely upon all information, data, dimensions, blueprints, schematics, diagrams, specifications, or other drawings or representations, whether oral or in writing, provided by or on behalf of Customer and shall have no responsibility to make any independent inquiry or investigation thereof. Caplugs assumes no obligation or liability for any advice or assistance given or results obtained; all such advice or assistance is given and accepted at Customer’s risk. Customer assumes all responsibility for evaluating the Products and determining the suitability of the Products for Customer’s intended application, and Customer assumes all risks and liability associated with such use.
10. Inspection and Acceptance. Customer shall have thirty (30) days from receipt of Products to inspect the Products for conformance with the specifications set forth in Caplugs’ quotation, order acknowledgement, or as may otherwise be mutually agreed by the parties (the “Specifications”). Customer may reject Products that do not substantially conform to the Specifications (“Non-Conforming Products”). All rejections shall be made in writing to Caplugs and provide sufficient detail as to the reason for such rejection.
11. Returns. No returns will be accepted without a Return Goods Authorization (“RGA”) number. To return Non-Conforming Products, Customer shall contact Caplugs Customer Service within thirty (30) days of delivery for a RGA number. Caplugs has sole discretion to determine, after examination, whether returned Products are Non-Conforming Products, and Caplugs’ determination shall be binding on Customer. Customer’s sole and exclusive remedy for returned Products that have been found to be Non-Conforming Products shall be either, in Caplugs’ sole discretion: (i) replacement of the returned Products, or (ii) reimbursement of the amount paid by Customer for the returned Products. All other returns are subject to a 30% restocking fee if received within thirty (30) days after shipment, or a 50% restocking fee if received thirty (30) to ninety (90) days after shipment. No returns will be accepted more than ninety (90) days after shipment. Sterile items and pre-filled containers cannot be returned.
12. Limited Warranty. Caplugs warrants that, upon delivery, Products shall be free from defects in material and manufacture and materially conform to the Specifications. Any products manufactured by a third party are not covered by the foregoing warranty; as to such third party products, Caplugs hereby passes through to Customer any warranties to the extent permitted by the original manufacturer. EXCEPT AS SET FORTH IN THIS SECTION 12, Caplugs MAKES NO OTHER REPRESENTATION OR WARRANTY AND PROVIDES NO OTHER IMPLIED CONDITIONS WHATSOEVER WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE), OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Caplugs shall not be liable for a breach of the warranty set forth in this Section 12 if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow Caplugs’ instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer alters or repairs such Products without the prior written consent of Caplugs.
13. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN: (A) IN NO EVENT SHALL Caplugs, ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, HAVE ANY LIABILITY FOR LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE, TO ANY PERSON OR ENTITY, AND (B) THE ENTIRE LIABILITY OF Caplugs UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL PRICE PAID BY CUSTOMER TO Caplugs FOR THE PRODUCTS WHICH GIVE RISE TO THE CLAIM; IN EACH CASE WHETHER GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY THEORY OF STRICT LIABILITY OR OTHERWISE.
14. Indemnity. In addition to all other rights and remedies available to Caplugs at law or in equity, Customer assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Caplugs, its officers, directors, equity holders, agents, employees, successors and assigns from and against all and all claims, liabilities, damages, losses, and expenses, including attorneys’ fees, in connection with or arising, directly or indirectly, out of: (i) any actual or alleged improper use of any Product, (ii) any negligence, omissions, or willful misconduct of Customer or any of its employees, agents or representatives, and (iii) any allegation that Products supplied pursuant to Customer’s design or specifications infringe a patent, copyright, trademark, trade secret, or other proprietary or intellectual property right of a third party, whether such are provided alone or in combination with other products or processes. Customer shall not settle any such suit or claim without Caplugs’ prior written approval.
15. Tooling. All tooling in Caplugs’ possession that is owned by Customer will receive normal maintenance for the production of parts unless: (a) the tool has produced more than 500,000 parts per cavity, or (b) the tool has had no production activity for more than one (1) year. In either event, it may be necessary to refurbish or rebuild the tool, in Caplugs’ discretion and at Customer’s expense, before any additional parts can be produced. Customer agrees that in consideration for the maintenance, storage and/or disposal of the tooling inserts by Caplugs, all of Customer’s right, title, and interest in and to the tooling inserts shall automatically transfer to Caplugs after a period of eighteen (18) months during which Customer does not issue any orders for Products produced using such inserts.
16. Confidential Information. Customer agrees that all information and data disclosed or submitted by Caplugs under or pursuant to the Agreement, including, without limitation, that contained in drawings or specifications, is proprietary to Caplugs and will not be disclosed by Customer to any third party and will not be used by Customer for any purpose other than fulfilling the Agreement, without Caplugs’ prior written consent.
17. Force Majeure. Caplugs shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by, results from or is contributed to by acts or circumstances beyond the reasonable control of Caplugs including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, regional public health emergency, lockouts, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. Upon any of the above events, Caplugs will have the additional right to extend the time to provide the Products under the Agreement or to cancel any open purchase orders without any resulting liability to Customer.
18. Attorneys’ Fees. In the event of a dispute between the parties with regard to or arising out of the Agreement which results in litigation, the prevailing party shall have its attorneys’ fees, lawyers’ fees, professionals’ fees, extrajudicial fees and costs paid by the losing party, and such sum may be added to any judgment entered in the litigation. A party’s right to the foregoing shall not merge with but shall survive the entry of judgment, and shall extend to appeals and collection.
19. Assignment. Customer shall not assign, delegate, or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of Caplugs. Any such assignment, delegation, or transfer without Caplugs’ prior written consent shall be void. Caplugs may assign, delegate, or transfer any and all of its rights and obligations under the Agreement at any time and without prior written consent of Customer.
20. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. If the amendment or modification of such provision is impossible, the Agreement shall be construed as if it never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of the Agreement.
21. No Third-Party Beneficiaries. The 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 the Agreement.
22. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the 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.
23. Governing Law and Jurisdiction. The Agreement shall be construed and enforced exclusively in accordance with the substantive and procedural laws of the Province of Ontario and the federal laws of Canada applicable therein, and without regard to rules of construction relating to which party drafted the Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal suit, action or proceeding arising out of or relating to the Agreement 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 or proceeding.
24. Waiver. No claim or right arising out of a breach of these Terms by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Caplugs. Caplugs’ waiver or acceptance of any breach by Customer of any provisions of the Agreement shall not constitute a waiver of, or an excuse for, nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision.
25. Entire Agreement. The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. These Terms and each Agreement constitutes the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term in the Agreement. Caplugs’ acceptance or acquiescence in a course of performance rendered by Customer pursuant to the Agreement shall not be relevant to determine the meaning of this contract even though Caplugs has knowledge of the nature of the performance and opportunity for objection. No subsequent terms, conditions, understandings, or agreements purporting to amend these Terms or the Agreement will be binding unless issued by Caplugs in writing and signed by Caplugs’ General Manager and an authorized representative of Customer.
26. Language. The parties have requested that these Terms and all documents contemplated by these Terms be drawn up in English. Les parties aux présentes ont exigé que cette entente et tous autres documents envisagés par les présentes soient rédigés en anglais.