Terms & conditions

1. SCOPE

These general terms and conditions of sale (“Terms”) apply to contractual relationships in respect of the sale of film (“Products”) by MODIX PLASTIQUE Company. or any of its subsidiaries or affiliated companies (“MODIX PLASTIQUE Company”) to the Customer (“Customer”). Variations to these Terms will only be enforceable if accepted by MODIX PLASTIQUE Company in writing.

2. OFFERING AND ORDERING

Customer’s submission of an order (“Order”) in response to MODIX PLASTIQUE Company’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 MODIX PLASTIQUE Company 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 thirty(30) 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 MODIX PLASTIQUE Company in writing. Any variation or cancellation of a Contract shall be subject to MODIX PLASTIQUE Company’s acceptance in writing. In case of variation or cancellation of a Contract by Customer, MODIX PLASTIQUE Company 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.

3. DELIVERY

Unless otherwise specified in writing by MODIX PLASTIQUE Company, delivery of all Products is ruled by the Incoterms 2010®, Ex Works (EXW). The place of delivery may be specified by MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company’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 MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company before Customer has examined or processed the Products delivered under the initial Order, Customer shall be deemed to have accepted all Products produced by MODIX PLASTIQUE Company (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 MODIX PLASTIQUE Company until the payment of such Products has been made in full. Customer undertakes that it will not, without MODIX PLASTIQUE Company’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 MODIX PLASTIQUE Company’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, MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company’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, MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company, entitles MODIX PLASTIQUE Company 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. MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company.

5. WARRANTY

Exclusion of warranties: Customer agrees that there are no warranties, express or implied, given by MODIX PLASTIQUE Company beyond the description on the Order Confirmation. MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company 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. MODIX PLASTIQUE Company shall not be liable for normal manufacturing defects nor for customary variations from specifications. The Products may vary in shade and MODIX PLASTIQUE Company assumes no responsibility for such variations. MODIX PLASTIQUE Company 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.

6. INTELLECTUAL PROPERTY

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 MODIX PLASTIQUE Company, 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 MODIX PLASTIQUE Company or any third party. MODIX PLASTIQUE Company assumes no liability for infringement of intellectual property rights of any third party covering any combination of any Products sold by MODIX PLASTIQUE Company with any product, whether or not supplied or sold by MODIX PLASTIQUE Company, or any method or process in which any Product sold by MODIX PLASTIQUE Company may be used. MODIX PLASTIQUE Company, 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 MODIX PLASTIQUE Company’s opinion, infringes any patent, trademark or other intellectual property under which MODIX PLASTIQUE Company is not licensed. Customer agrees to hold MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company at Customer's instructions.

7. CONFIDENTIALITY

Customer acknowledges that all technical, commercial and financial data (including pricing) and information belonging to MODIX PLASTIQUE Company (“Confidential Information”) which is not already in the public domain at the time it is communicated to Customer by MODIX PLASTIQUE Company in strict confidence and remains the property and entitlement of MODIX PLASTIQUE Company. Confidential Information may not be disclosed to a third party without MODIX PLASTIQUE Company’s express prior written consent and may not be used for any purpose other than the fulfilling of Customer’s Order. Customer shall indemnify MODIX PLASTIQUE Company 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

MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company or the use thereof, whether or not such damages are based on tort, warranty, contract or any other legal theory – even if MODIX PLASTIQUE Company has been advised, or is aware, of the possibility of such damages. MODIX PLASTIQUE Company 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.

8.1 CLAIMS

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 MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company at a point in the continental United States or in the Province of Quebec (Canada) designated by MODIX PLASTIQUE Company. Failure to do so constitutes acceptances of the Products and waiver of all claims for defect. MODIX PLASTIQUE Company 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, MODIX PLASTIQUE Company, at its option, may replace the Products within a reasonable time in full satisfaction of all claims of Customer.

8.2 TECHNICAL ADVICE

MODIX PLASTIQUE Company may, upon Customer's request, provide technical advice with respect to the use of Products sold hereunder, to the extent that MODIX PLASTIQUE Company has such advice conveniently available. However, it is expressly understood by Customer that MODIX PLASTIQUE Company is under no obligation to furnish technical advice and Customer further understands that such advice is given by MODIX PLASTIQUE Company and accepted by Customer at Customer's sole risk. Under no circumstances shall MODIX PLASTIQUE Company be responsible to Customer, or liable, for the advice or assistance given or the results thereof.

9. SUSPENSION AND TERMINATION

9.1 FORCE MAJEURE

MODIX PLASTIQUE Company may, upon Customer's request, provide technical advice with respect to the use of Products sold hereunder, to the extent that MODIX PLASTIQUE Company has such advice conveniently available. However, it is expressly understood by Customer that MODIX PLASTIQUE Company is under no obligation to furnish technical advice and Customer further understands that such advice is given by MODIX PLASTIQUE Company and accepted by Customer at Customer's sole risk. Under no circumstances shall MODIX PLASTIQUE Company be responsible to Customer, or liable, for the advice or assistance given or the results thereof.

10. GENERAL PROVISIONS

10.1 TERMINATION

Without prejudice to any other rights or remedies, MODIX PLASTIQUE Company 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.

10.2 ASSIGNMENT

Customer shall not assign its rights or obligations under this Contract, nor approve a change of control of Customer, without MODIX PLASTIQUE Company’s prior written consent. MODIX PLASTIQUE Company may transfer the benefits of this Contract, in whole or in part, without the approval of Customer.

10.3 INTERPRETATION

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 MODIX PLASTIQUE Company 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.

10.5 SET-OFF

MODIX PLASTIQUE Company 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 MODIX PLASTIQUE Company.

10.6 NOTICES

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:

METHOD OF SERVICE

  • By hand of by courier
  • By pre-paid first class post
  • By recorded delivery post
  • By fax (provided the sender’s fax machine confirms complete and error-free transmission of that notice to the correct fax number)
  • By email (provided the sender requests a delivery receipt)

DEEMED DAY OF RECEIPT

  • The day of delivery
  • The second business day after posting
  • The next business day after posting
  • The next business day after sending or, if sent before 16.00 (sender’s local time) on the business day it was sent
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