Standard Terms & Conditions
These Terms and Conditions govern the sale of all goods and services sold by Canning Pros (“Seller”) along with the Seller’s quotation, acknowledgment, or Offer Agreement (“Seller’s Offer”), if any, and form the entire agreement between Seller and Buyer (“Agreement”). Seller’s Offer to sell the goods or services described in Seller’s Offer is being made only upon the terms and conditions contained herein in addition to Seller’s Offer. Seller’s Offer shall be deemed accepted and shall become a binding contract on the terms and conditions contained herein: (a) when Buyer issues its oral or written acknowledgment, (b) when Seller commences performance, or (c) when Buyer otherwise accepts Seller’s Offer. By accepting Seller’s Offer, Buyer waives all terms and conditions contained in Buyer’s purchase order or other documents which are different from or additional to those contained herein (whether or not Buyer sends its documents before or after Seller sends this form or any written acknowledgments), and all such different or additional terms and conditions shall be null and void and of no effect.
- Title: At the time of sale to Buyer, Seller shall possess title and right to resell and distribute all goods covered by Seller’s Offer, as such Seller retains a principal relationship concerning such goods with the manufacturer. Title to the goods only passes from Seller to Buyer once the Seller has been paid in full for such goods. Until payment in full is made, the Buyer shall keep the Seller’s goods separate from goods belonging to Buyer or any third party, mark the goods as property of the Seller, and
allow the Seller access to the property where the goods are stored to ensure compliance with these provisions. The Buyer agrees that the Seller shall have the right to enter the Buyer’s premises or any premises where the goods are being stored and repossess them if the Buyer does not make payment in full to the Seller by the date agreed upon between the Buyer and Seller.
- Notwithstanding any other provision herein, the Seller shall retain title to all goods until the Buyer has paid all outstanding invoices.
- The Buyer shall not sell the Seller’s goods or use the Seller’s good in any product the Buyer sells
until the Buyer has paid all outstanding invoices in full.
- Liability: The Buyer shall be liable for risk of damage or loss of the goods, or delay in shipping, upon delivery to the Buyer’s designated premises or the carrier nominated by the Buyer, whichever shall first occur.
- Price: Prices within Seller’s Offer are valid upon the date issued but become void after the date specified therein or, if no date is specified, then thirty (30) days from date issued. Shipping allowances and prices are subject to change by Seller with at least seven (7) days written notice to Buyer. Any reorder of goods that occur following the expiration of the Seller’s Offer are subject to stated increases. Notwithstanding the above, increases in costs associated with labour, freight, materials, or resources related to the manufacturing, storage or transport of goods that arise following the date of Seller’s Offer and prior to delivery of goods may be invoiced to Buyer without advance notice.
- Transport & Delivery. Shipment will be made in accordance with instructions issued by the terms of Seller’s Offer. Seller shall use best efforts to meet all designated deadlines. However, shipping, delivery, lead times and performance dates are approximate and as such are not guaranteed. Seller reserves the right to review transportation costs and make adjustments up or down based on real time market conditions. In the event Buyer requests, causes, or allows a delay to the delivery or shipment date, Buyer shall be fully responsible to pay or to reimburse Seller for any charges incurred as a result of such delays requested, caused or allowed by Buyer.
- Performance Requirements. All Seller Offers shall be subject to: (i) credit approval, the Buyer authorizes the Seller to disclose personal information to credit agencies for the purpose of checking credit worthiness. The Buyer acknowledges that any Seller’s offer is conditional on the Seller in its sole discretion being satisfied with the results of any check carried out by a credit agency; (ii) rejection and/or modification due to lead times, delivery dates or raw material availability; and (iii) minimum order quantities. If Seller’s Offer contains any clear or quantifiable performance targets required to be achieved by Buyer, Buyer shall be liable to Seller for all consequences in the event defined targets are not achieved.
- Payment Terms and Interest: Payment terms are as specified on the order confirmation and invoice. Seller reserves the right to change payment terms at any time. Past due balances may be subject to a late payment charge of 1.5% per month (18% per annum), or the maximum amount permitted by law, whichever is less. Buyer shall pay all charges, costs, and legal fees incurred in collecting amounts owed.
- Force Majeure. Neither party shall be liable or responsible to the other party for any delay or other failure of performance resulting from circumstances that are beyond its reasonable control relating to production, storage, or transportation of goods, including without limitation acts of God, war (whether declared or not), acts or omissions of military or civil authorities, changes in laws or regulations, terrorism, sabotage or piracy, currency or trade restriction, blockade, embargo, sanction, act of government whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization, plague, fire or other casualty, weather, war, riot, delays in transportation, or inability to obtain necessary products, goods, materials, components, equipment, services, energy or utilities through usual and customary practices; the suspension, shutdown, lockdown, slowdown, or closure of business, or inability to effect delivery from or the result of any of the foregoing events: epidemic, pandemic (including Covid-19), natural disaster, extreme natural event, extreme weather event, nuclear, chemical or biological contamination, explosion, fire, destruction of equipment, prolonged break-down of transportation, telecommunications, information systems or energy and general labour disturbance such as boycott, strike or lock-out, work to rule, go-slow and governmental closure of centres and premises. For the avoidance of doubt, Force Majeure shall not include: i) financial distress nor the ability of either party to make a profit or avoid a financial loss; ii) changes in market prices of conditions, or; iii) a party’s financial inability to perform its obligations hereunder. In any such event, either party may, with prompt notice detailing circumstances and anticipated duration to the other party, from time to time without further liability: (a) postpone its performance under this contract and agree to resume all performance obligations as soon as reasonably practicable (b) make partial performance and agree to resume all performance obligations as soon as reasonably practicable, (c) mutually discuss and agree on temporary relief from obligations until reasonably practicable.
- Warranty and Remedy. Seller warrants to Buyer, for a period of one hundred and twenty (120) days from the date of delivery of goods and/or performance of services, that its services hereunder are performed in a good and workmanlike manner, in accordance with applicable laws, and that goods delivered hereunder, under proper and normal use, are free from material defects in materials and workmanship, except that goods and services furnished to Buyer by suppliers or subcontractors of Seller shall be warranted by Seller only to the extent of the supplier’s or subcontractor’s express warranty to Seller. If during such period Buyer promptly notifies Seller in writing of any breach of such warranty and complies with any applicable warranty procedures of Seller, Seller shall thereupon, at Seller’s sole discretion, re-perform services, repair, or replace any
defective goods which gives rise to the claim. Seller shall make no allowance for repairs or alterations made by Buyer unless made with Seller’s prior written consent. Any alterations, modifications, repairs or attempted repairs by Buyer or at the request of Buyer of goods without the express written consent of Seller shall void Seller’s warranty. The foregoing shall constitute the
sole and exclusive remedy of Buyer and the full liability of Seller for any breach of warranty. The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral or implied, including any warranty of performance, merchantability or fitness for particular purpose, (and supersedes and excludes any oral warranties or representations or written warranties or representations, not expressly designated in writing as a “warranty” or “guarantee” of Seller, made or implied in any manual, literature, advertising brochure or any other materials). All warranties of merchantability and fitness for a particular purpose are hereby disclaimed. No warranties may be assigned to any subsequent Purchaser or user of the goods or services without prior written notice and approval by Seller.
- Disclaimer of Warranty: Buyer assumes the sole liability for any non-performing cans, printed cans, can ends, or Paktech beer containers, such as damage or otherwise, where the goods are not packed, stored, or distributed in accordance with good business practice by Buyer or third party contractors, or where any damage results from rust or outside corrosion occurring after receipt of goods by Buyer or third party contractor, or from improper handling, capping, closing, crimping, filling, pasteurizing, or gassing operations by Buyer or third party contractor, or from off flavour or smell, or from the use of components other than those supplied by the Seller, or where the goods are exported, in an empty or filled state, to a foreign country. Purchaser has evaluated any perceived risk and assumes all risk and liability for any non-conformance for the cans and ends, such as the result in leakages or recalls, and for any resulting damages or injury to the Buyer, its employees, or any third parties arising from the handling, filing, and/or use of the goods. Purchaser assumes all risk and liability for label design and artwork for labels produced by third party supplier for the shrink sleeve or pressure sensitive label.
- Limitation of Seller’s Liability. In no event shall Seller be liable for any special, incidental or
consequential damages or for damages in the nature of penalties whether or not the Seller has been advised of the possibility of such damages and whether any claim for recovery in based on theories of contract, negligence or tort including strict liability. Notwithstanding any other provision of this Agreement, Buyer agrees that the Seller shall only be liable for gross negligence up to the lesser of: a) the actual direct damages incurred by Buyer; b) the amount of per occurrence liability insurance actually paid out for the specific claim; b) the value of the Buyer’s order for which the claim is made.
- Buyer’s Use. Upon acceptance, Buyer acknowledges that it shall have reviewed all specifications and technical documentation and agrees that the outlined specifications and technical documentation for the goods are sufficient for its purpose. Additionally Buyer agrees to have conducted an appropriate evaluation of the goods, and is solely responsible for determining the suitability of the goods including all parts and components of the goods purchased from Seller and is not relying on Seller in making such determination. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use.
- Limitation of Actions. The Buyer waives all claims for shortages or defects in the goods unless they are submitted in writing within 15 calendar days of delivery. The Seller and Buyer agree that any action for any loss or damage with respect to the goods or services which are the subject of this contract must be commenced by Buyer within four (4) months from the date of delivery of goods or services or such claim shall be forever barred. Buyer shall provide Seller reasonable opportunity to examine and test goods that are the basis for any such claim. As a condition for replacement, refund or credit, Seller may request the return of alleged nonconforming goods in the same condition as when received. All claims against Seller resulting in the return of goods must be: (i) approved in advance by Seller; (ii) of goods in new condition; (iii) not decorated or uniquely
customized; and (iv) manufactured within four (4) months.
- Indemnification and Waiver. Seller shall defend, indemnify and hold harmless Buyer from any cost, loss or damage sustained by Buyer with respect to the goods or services provided under Seller’s Offer for Seller’s breach of warranty as set forth in number 10 (Warranty and Remedy) hereof. Buyer shall defend, indemnify and hold harmless Seller from any cost, loss or damage sustained by Seller and from and against all claims asserted against Seller with respect to the goods or services which are the subject of this contract including but not limited to that arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including but not limited to, the Occupational Safety and Health Act and any other applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Buyer, its agents, employees or customer including use of goods with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its agents, employees or customer, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyers designs, plans, or specifications, (g) from any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance, repair or operation of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Sellers gross negligence.
- Taxes. All taxes, duties, fees, and other charges imposed by federal, provincial, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods (other than Seller’s income taxes) are not included in the price and shall be paid by Buyer. Buyer shall defend, indemnify, and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith.
- Refused order: Seller shall be entitled to refuse to honour any order or to ship any part of the goods sold if any indebtedness or liability of the Buyer to Seller under any contract shall at that time be overdue, in addition to any other remedies hereunder or at law. Seller shall be entitled to refuse to honour any order or to ship any part of goods sold it, in the Seller’s opinion, the credit of the Buyer becomes impaired until such time as Seller has received satisfactory security for deliveries made or to be made and is satisfied as to the Buyer’s credit for future deliveries. Seller may fix or change from time to time the terms of credit under which the goods shall be shipped and may decline to ship all or any part thereof until such credit terms are met.
- Termination: If bankruptcy or insolvency proceedings are initiated by the Buyer or instituted against the Buyer or if the Buyer seeks protection from its creditors under the Companies Creditor Arrangement Act or Ch. 11 of the United States Bankruptcy Code or any similar legislation or regulation the Seller may terminate any order or agreement immediately, and repossess any goods in the Buyer’s possession for which the Seller has not been paid in full (subject to the Bankruptcy and Insolvency Act or any similar legislation).
- Buyer’s Materials. All of Buyer’s tooling, goods and other property in Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such material caused by Sellers negligence or otherwise. If Seller has agreed to retain an inventory or stock of goods, Seller’s obligation to inventory goods shall be subject to Buyer’s continued compliance with this Agreement including timely payment, accurate forecasts, and compliance with applicable lead times. If at the request of Buyer, any good is to be discontinued or altered, Buyer agrees to purchase and pay for all such raw materials that have been procured and goods that have been manufactured on their behalf. In the event any goods are maintained in inventory exceeding an agreed upon storage period, Buyer agrees to either purchase such goods or order the goods scrapped and pay the purchase price as if such goods had been purchased in addition to any scrap fees.
- Proprietary Rights. Unless agreed otherwise, Seller shall be the sole owner of all drawings, inventions or improvements made by or for Seller in connection with the performance of this contract. Buyer shall not reproduce any drawing furnished by Seller. Neither party shall use or disclose any of the other party’s trade secrets or confidential information, whether or not designated as such, except as required in connection with the use of the goods or performance of services covered by this Agreement.
- Engineering Costs: Seller will be responsible for engineering costs for developmental projects and will be encompassed in the prices stipulated in Seller’s offer. If the project does not go to market with the Seller or the Buyer cancels their order, the Buyer will be responsible for the engineering costs and any other costs incurred by the Seller.
- Buyer’s responsibility: Buyer is responsible for reviewing specifications and prints and ensuring that they are sufficient for the Buyer’s needs. Buyer will conduct proper compatibility and stability testing on the goods the Seller provides them to ensure they are adequate for the Buyer’s needs. Seller shall not be responsible or held liable for any issues related to product compatibility or stability. Buyer shall ensure that they have the intellectual property rights for any designs, prints, logos, photo, product name, phrases they provide the Seller and the Buyer is solely liable for any intellectual property infringement. The Buyer is solely responsible for reviewing the goods and ensuring said goods are adequate for the Buyer’s needs.
- Buyer’s Financial Responsibility. This contract shall be deemed a Security Agreement under the Uniform Commercial Code and Personal Property Security Act, wherein Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. If Seller shall at any time doubt Buyer’s financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except
upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming within 10 days after the date of Seller’s demand, Seller may at its option: (1) continue to defer further shipments under any order from Buyer which has been accepted by Seller until adequate assurances are received, or; (2) cancel any order from Buyer which has been accepted by Seller and recover damages. Any amounts past due are subject
to interest and penalty as stipulated herein. All payments processed with or amounts charged to a credit card are subject to an additional 2.5% processing fee.
- Entire Agreement: Seller’s Offer together with these Standard Terms and Conditions constitute the entire agreement (“Agreement”) between Buyer and Seller relating to the goods or services which are the subject hereof and any oral agreement or previous understanding is superseded by these Standard Terms and Conditions. No modification of the Seller’s Offer shall be binding upon either party unless in writing and signed by both parties’ duly authorized representative. Seller’s Offer may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to Seller’s Offer transmitted electronically shall have the same authority, effect and enforceability as an original signature. If any term or provision of this contract shall to any extent be invalid or unenforceable, the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance. To the extent any term contained in Seller’s Offer differs from a term in these Standard Terms and Conditions, the terms set forth in Seller’s Offer shall control.
- Severability: In the event that any provision or part of this Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative.
- Choice of Law and Jurisdiction. These terms and conditions shall be construed in accordance with the laws of the Province of Ontario, without regard to principles governing conflicts of laws. Buyer and Seller consent to the jurisdiction and venue of the federal and provincial courts situated in or having their situs over the Province of Ontario.
- Dunnage return: Buyer shall return at their expense all re-useable dunnage to Seller in good condition, normal wear and tear accepted, and Buyer shall be liable for the costs of repair and replacement in excess of normal wear and tear. Buyer is responsible for all unaccounted dunnage. Buyer shall return dunnage to Canning Pros designated locations only.
- Headings: The headings in this Agreement are for convenience only and shall not define or limit any of the terms and provisions hereof.
- Change: These terms and conditions may change without advance notice or warning. It is
incumbent upon the Buyer to check these terms and conditions from time to time for any change.