DIMACHEM INC., DIMAFILL PACKAGING INC. & DIMAHOLDCO INC. (inclusively as Dimachem)
PURCHASE ORDER TERMS AND CONDITIONS
In this document:
PURCHASE ORDER GENERAL TERMS AND CONDITIONS
DIRECT SHIPMENT (PRIVATE LABEL) AND CO-PACKER TERMS AND CONDITIONS
CONTRACTOR TERMS AND CONDITIONS
PURCHASE ORDER GENERAL TERMS AND CONDITIONS
- COMPLETE AGREEMENT: The terms and conditions contained herein and attached as written by Dimachem Inc., Dimafill Packaging Inc.or Dimaholdco Inc. (herein inclusively as Dimachem) constitute the entire agreement between the parties hereto and no amendments shall be binding unless in writing and signed by a duly authorized representative of Dimachem and expressly made part of this order.
- MATERIALS: Dimachem may return at the Seller’s expense and responsibility on the Seller, unauthorized substitutions, materials delivered in error or of the wrong description of quality, or in excess of the stated quantity or defective in design, or not complying with the specifications set out therein.
- WARRANTY: The Seller shall at its expense and as required by Dimachem repair, replace or make good at the convenience of Dimachem or any subsequent owner of goods or materials purchased by Dimachem pursuant to the terms hereof, any defective goods or materials. The Seller warrants all goods and materials sold pursuant to the terms hereof to be good and satisfactory for the purpose or purposes for which the Seller understands the same are to be used.
- NON-WAIVER: Failure of Dimachem to insist upon performance of any term or condition herein shall not be deemed a waiver of any rights or remedies that it may have on any subsequent default by the Seller hereunder. The shipping or receiving of any material under this order shall not be deemed a waiver of rights arising from any prior failure by the Seller to comply with any of the provisions of this order.
- Seller agrees to indemnify and save harmless Dimachem against any and all claims for patent infringement or for royalties with respect to any goods, apparatus, or equipment to be furnished by Seller hereunder other than a particular process or the product of a particular manufacturer other than Seller specified by Dimachem, and Seller will defend as its expense any and all suits or actions at law which may be brought against Dimachem under any such claims for infringement or royalties. Dimachem will give Seller notice in writing of the institution of any such suit or proceeding and will permit Seller, through Seller’s counsel, to defend the same and will give Seller all needed information, assistance and authority to enable it to do so.
- INDEMNIFICATION: The Seller agrees to indemnify and save harmless Dimachem and its successors and assigns from and against any and all damages, liability or claims at law or at equity arising out of any act or omission of the Seller, its servants, agents, subcontractors or licensees in the furnishing of the goods and/or materials hereunder.
- CONSISTENCY: If any of the terms & conditions on the reverse side hereof are inconsistent with any terms and/or conditions set forth on the face of this order, the latter shall govern.
- GOVERNING LAWS: This order and all matters pertaining hereto shall be construed under and governed by the laws of the Province of Ontario. Seller warrants compliance with all federal, provincial and municipal laws, ordinances, rules and regulations, and all amendments thereto, that are applicable to this Order, and shall furnish Dimachem with certificates of such compliance where required thereunder or when requested by Dimachem. It is also agreed that each invoice rendered to Dimachem under this Order shall constitute written assurance by Seller that Seller has fully complied with all applicable laws, ordinances, rules and regulations to ensure and minimize the risks of spills.
- PACKAGING AND SHIPPING: All goods covered by this order shall be suitably packed or otherwise prepared for shipment, so as to secure the lowest transportation rates and to meet carrier’s requirements. No charges will be accepted for packing, crating or cartage, unless stated in this order. Each container must be marked to show Dimachem’s code, lot number, quantity, order number, contents, and shipper’s name. A packing sheet showing this information shall be included in each shipment. Dimachem shall designate the preferred carrier, unless otherwise specified.
- PALLETS: All shipments that are shipped on a pallet must meet our Pallet Specifications
- CUSTOMS DOCUMENTATION: When accepting a Purchase Order, Seller agrees to forward upon request to Dimachem and to Nippon Express, all customs documentation required under applicable legislation including a NAFTA Certificate, whether pursuant to the North America Free Trade Agreement or otherwise. All paperwork must state “Nippon Express” as Dimachem’s Broker. US Seller with prepaid shipping terms must maintain customs paperwork for a period of not less than 5 years, for Canada Customs requirements.
- INSPECTION & RETURN (OF GOODS): It is understood that Dimachem shall not be obliged to inspect any goods or workmanship until Seller (including any contractor or sub-contractor of Seller) has completed the performance of all of his obligations hereunder. Goods rejected on account of inferior quality or workmanship will be returned to Seller with charge for transportation both ways, plus labor, reloading, truckage, etc., and duty if applicable, and shall not be replaced except upon specific request from Dimachem. Dimachem reserves the right to perform agreed upon verification and release of materials at the suppliers premises.
- CANCELLATION: Dimachem reserves the right to cancel this Purchase Order, or any part thereof at any time, without cause, by written notice to Seller. In the event of such cancellation, Dimachem shall pay for materials or services delivered, completed, and acceptable to Dimachem and an equitable settlement shall be arrived at for cost incurred by Seller for materials in process and for all reasonable profit thereon not to exceed the price specified in this Purchase Order. Upon receipt of any notice of cancellation hereunder, Seller shall, unless otherwise directed, immediately discontinue all work in process and immediately cancel all orders or subcontracts given or made pursuant to this Purchase Order.
- HAZARDOUS SUBSTANCES: Seller agrees to promptly furnish to Dimachem (1) upon written request, a list and description of all ingredients in materials purchased hereunder, including ingredients which could reasonably be considered pollutants, contaminants, chemicals, deleterious substances or industrial, toxic or hazardous waste or substances and (2) thereafter information concerning any changes in such ingredients.
- OVERRIDING CONDITIONS: In case of conflict of any of Dimachem’s terms with those of Seller, Dimachem’s terms will govern unless specific exception is agreed to in writing by Dimachem.
- The Seller shall maintain such insurance and pay such assessments as will protect him and Dimachem from claims under Worker’s Compensation Acts and from any other claims for damages for personal injury, including death, and from claims for property damage, the whole to the extent of Seller’s liability hereunder. Certificates of such insurance shall be maintained until the work is completed. The Seller shall also carry sufficient Worker’s Compensation and Contract Liability Insurance to cover his responsibility under the Contract. Dimachem may retain from any payment otherwise due hereunder the amount of any assessment or contribution due the Seller or sub-contractor or agent of his with respect to Worker’s Compensation.
- Unless otherwise stated on the face of this order, or on a confirmed Acknowledgement of Order, Seller shall not bill this order at higher prices than last quoted or charged to Dimachem. If terms are not shown on invoice, 2% 10th prox. net 30 days will be taken.
- DUTY DRAWBACK RIGHTS: Seller hereby transfers to Dimachem all customs duty and import tax drawback rights, if any, relating to the goods (including rights developed by substitution and rights which may be acquired from Seller’s suppliers) which Seller can transfer to Dimachem. Seller will inform Dimachem of the existence of any such rights, upon Dimachem Canada’s request, will supply Dimachem with such documents as may be required to obtain such drawbacks.
- DEFAULT: Upon default by either party in performing any obligation hereunder, the other party may give notice in writing of such default to the defaulting party. Unless the default is cured within fifteen (15) days after giving notice, this Purchase Order may be terminated by the party giving notice. Such termination shall not relieve the party in default from any obligations under or from liability for breach of this Purchase Order. Notwithstanding the foregoing, if any material shipped does not conform to its warranties, Dimachem may, without prejudice to any of its rights, terminate this Purchase Order without Seller having the right to cure the default. Waiver by either party of a single default, or a succession of defaults, shall not deprive such party of any rights arising by reason of any other default.
- MISCELLANEOUS: Sales Tax License Numbers are applicable when shown. The Seller shall supply Dimachem with a Certificate of Analysis which must arrive with or prior to delivery. The Seller shall fax back to Dimachem the purchase order confirming price, quantity and delivery. The Seller shall notify Dimachem of any special status change related to quality or delivery issues.
Dimachem Inc. H.S.T. #844113258RT0001
Dimafill Packaging Inc. H.S.T. #796185346RT0001
Dimaholdco Inc. H.S.T. #796184745RT0001
DIRECT SHIPMENT (PRIVATE LABEL) AND CO-PACKER TERMS AND CONDITIONS
Dimachem Inc is a value added formulated chemical supplier and from time to time we arrange direct private label shipments of materials and/or co-packing to be performed by our Suppliers. Acceptance of our Purchase Order implies binding acceptance of the following Terms and Conditions for all direct shipments made on our behalf:
- SUPPLIER will not contact DIMACHEM’s customer directly unless authorized by DIMACHEM and will protect DIMACHEM’s supply arrangement.
- This direct ship business to a location/customer as initially generated by DIMACHEM is protected by SUPPLIER for the exclusive benefit of DIMACHEM. SUPPLIER agrees to not quote directly to DIMACHEM’s customer and commits to protecting DIMACHEM’s business giving DIMACHEM the most competitive pricing support at this end customer.
- SUPPLIER will work with DIMACHEM to ensure all direct shipments are delivered on time and in good condition.
- Private labels are critical to our direct shipments. SUPPLIER must ensure all direct shipments are delivered with DIMACHEM labels. DIMACHEM prefers that SUPPLIER creates a private label that meets our specifications (each time a new product is set up a label ‘proof’ should be provided to DIMACHEM for acceptance). Alternately, DIMACHEM can provide SUPPLIER with a batch of labels for you to put on our product (SUPPLIER will have to advise us of your stock levels so we don’t run out or incur rush shipping/courier charges).
- All paperwork provided to the end customer must reflect ONLY DIMACHEM as the supplier. This includes Bill of Lading (BOL), packing slips, CofA, SDS. SUPPLIER is selling to DIMACHEM so all the normal paperwork can be sent ONLY to DIMACHEM. For the direct delivery, SUPPLIER is acting as DIMACHEM’s carrier and as such must provide to the customer ONLY DIMACHEM’s Bill of Lading (not SUPPLIER’s BOL). SUPPLIER can either do a private label template or request us to supply by email all BOL and packing slip paperwork.
- SUPPLIER will hold all information pertaining to this customer confidential and property of DIMACHEM and will not disclose and not use this information for any purpose other than to serve DIMACHEM .
- In some cases payment terms may require extension to accommodate DIMACHEM’s terms with the end customer.
- SUPPLIER will provide POD for each PO issued to DIMACHEM within 5 business days.
- Failure by SUPPLIER to follow above procedures will incur service charges to invoice payment per DIMACHEM standard terms.
For annual acknowledgment by SUPPLIER of receipt of these Terms and Conditions:
SUPPLIER IS PRIVATE LABELLING AND/OR CO-PACKING? Yes / No
SUPPLIER Representative Signature:
CONTRACTOR TERMS AND CONDITIONS
- SAFETY AND POLICIES. Contractor is entirely responsible for security and safety at the Site. Contractor shall sign and comply with Dimachem’s CONTRACTOR SAFETY MANUAL and all laws of any governmental authorities for the safety of persons or property.
- AGREEMENT. The Purchase Order, these Terms and Conditions, any special conditions, Dimachem’s Policies, Design Standards and Insurance Requirements (together, the “Agreement”) along with Drawings, Specifications, addenda issued before issuance of the Agreement and any subsequently executed Change Order (together with the Agreement, the “Agreement Documents”) shall govern the relationship between the parties for the construction project described in the Agreement.
- EXECUTION OF THE WORK. Contractor shall furnish and control all labor, material, services, tools, equipment, and fixtures necessary to perform and complete in a good and workmanlike manner the Work described in the Agreement. All Work shall be done in accordance with all laws, ordinances, building codes, rules and regulations applying to the Work.
- SCHEDULE. Work shall be commenced and completed within the time frames set forth in the Agreement. Time is of the essence.
- TAXES, FEES AND PENALTIES. Contractor shall pay all applicable local, provincial and federal taxes, license and permit fees, assessments and charges related to the Work.
- WARRANTIES. Contractor warrants to Dimachem that all labor, materials and equipment furnished under the Agreement are of the type and quality required by the Agreement Documents, new (unless otherwise required or permitted by the Agreement Documents) and installed in a good and workmanlike manner and otherwise in accordance with the Agreement Documents. Contractor further warrants that (i) it shall use sound construction principles and practices in the performance of the Work; (ii) it shall apply to the Work a high degree of skill, care, judgment and supervision to assure that the Work is performed properly and in accordance with the Agreement Documents; and (iii) the Work will be free from defects not inherent in the quality required or permitted.
- SUPERVISION. Contractor shall provide a competent manager to lead the Project, approved by Dimachem, who shall be at the Site and working on the Project for layout, direction, coordination, sequencing and all other required activities, for the entire duration of and until final acceptance of the Work. The approved manager shall not be discontinued (except upon Final Completion of the Project or in the event of his or her termination of employment or disability or if Dimachem requests a replacement to resolve incompatible working relationships) and no new individual shall be designated without prior approval of Dimachem.
- MEETINGS. Contractor shall, if required by Dimachem, hold progress and/or administrative meetings with the Dimachem at times as agreed upon by Contractor and Dimachem. Contractor shall prepare minutes of such meetings with Dimachem and shall distribute minutes of such meetings to Dimachem and all attendees.
- INSPECTION. Dimachem and its agent(s) shall at all times have access to the Work whenever and wherever it is in preparation or progress.
- COORDINATION AND ACCESS. At no time shall Contractor hamper Dimachem’s use of any existing facility or interrupt the operation of existing utility systems. All Work shall be carried out in such a manner as to cause the least interference with Dimachem’s continuous operation and/or the work of other contractors. Corridors, doorways and exits, shall be kept free of all materials at all times. If it becomes necessary to interrupt utility service to make a connection, alteration or relocation to a system, Contractor shall prearrange such Work with Dimachem.
- SUBMITTALS. If Submittals are required by the Agreement, Submittals shall comply with the Agreement Documents and shall contain such information as required by Dimachem or Architect. At the time of submission of the Submittal, Contractor, Architect and Dimachem shall confer and agree upon a reasonable time for Dimachem’s acceptance or response of the Submittal. No portion of the Work for which a Submittal is required shall be purchased, fabricated, manufactured or constructed until Dimachem or its agent has approved the respective Submittal, unless otherwise directed to proceed by Dimachem. Review and approval of Submittals shall not relieve submitting entities of their responsibility to verify all dimensions, field conditions, quantities, and measurements, to coordinate with contiguous parts of the Work and otherwise comply with the Agreement Documents. Approval of Submittals does not authorize changes to Specification requirements. Contractor shall be responsible for any errors in the Submittals.
- PAYMENT. Contractor shall submit an Application for Payment and/or Invoice, as applicable, to Dimachem (or to Architect if directed by Dimachem) along with all supporting documentation including, but not limited to: (i) all documentation necessary to establish clearly that Contractor is entitled to payment of all amounts applied for, (ii) a signed and unconditional waiver of Contractor’s mechanic’s lien rights for all labor and material provided through the current Application/Invoice waiving their lien rights for all labor and material provided. By including any item of work in an Application for Payment and/or invoice, Contractor certifies that such item, or the stage of the Work for which payment is requested, has been properly provided and that Contractor is currently entitled to payment therefore under the Agreement Documents.
- LIENS. Contractor shall keep the premises free from liens arising out of the Work. If a mechanic’s lien is filed, Contractor at its sole cost and expense shall cause the same to be removed of record and/or bonded within ten (10) days following demand by Dimachem or notice to Contractor from any source disclosing the existence of such lien. Contractor shall indemnify, defend, and hold harmless Dimachem and its officers, trustees and employees from and against any liens, claims and suits on liens, claims for unjust enrichment and/or quantum meruit, or any other similar claims, damages, losses or expenses, including reasonable attorneys’ fees, arising out of the Work or resulting from nonpayment by Contractor or by any Subcontractor at any tier. Contractor’s obligation shall include any claim, damages, losses or expenses arising out of any one or more employee(s) of Contractor or any Subcontractor, any material suppliers, any other person or entity in privity of contract with Contractor or any Subcontractor at any tier who performs work or services or provides materials on the Project, or any other person or entity who claims a right to payment by reason of the Work and/or the Project. Such obligation shall not be construed to negate, abridge, or reduce any other rights or obligations of indemnity which would otherwise exist as to a party or person described in this clause.
- SUBCONTRACTS. Contractor shall transmit an updated list of all subcontractors to Dimachem prior to commencement of the Work. Contractor acknowledges that Dimachem reserves the right to reject Contractor’s proposed subcontractors on any reasonable basis, with no adjustment in the Contract Sum. Contractor shall not employ any subcontractor(s) rejected by Dimachem in writing. Contractor agrees that it is as fully responsible to Dimachem for the acts and omissions of Contractor’s subcontractors and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in the Agreement Documents is intended to or shall create any contractual relationship between any subcontractors of Contractor and Dimachem.
- CHANGES IN THE WORK. The Agreement may only be modified by written change order signed by both Dimachem and Contractor, and Contractor shall have no claim for any extra or additional work unless such work is clearly authorized in writing by Dimachem before such extra or additional work is performed. Contractor acknowledges that it waives all claims for extra charges for extra or additional work Contractor performs without prior written authorization from Dimachem
- COMPLETION. The Work shall be deemed complete after it complies in all respects with the Agreement Documents, Contractor has completed all punch list items, properly cleaned up its worksite, provided Dimachem with all required warranties, manuals, and record documents, and otherwise has completed all acts necessary to allow Dimachem to obtain occupancy or use permits as a result of the Work. Approval of Contractor’s Final Application for Payment shall be conditioned upon performance of all of the foregoing obligations and receipt of the documents set forth.
- CORRECTION OF WORK. At Dimachem’s request, Contractor shall, at Contractor’s expense, promptly remove from the Site all Work identified by Dimachem as not in accordance with the Agreement Documents, whether incorporated or not; Contractor shall, at Contractor’s expense, promptly replace and re-execute all labor, supplies, materials, equipment and/or other facilities in accordance therewith and restore all Work of other contractors and subcontractors destroyed or damaged as a result of such removal, replacement and re-execution. If, within one year of the date of final completion by Contractor or within any longer period of time prescribed by law or by the terms of any applicable special warranty or guarantee required by the Agreement Documents, any of the Work is found by Dimachem to be erroneous, defective or not in conformance with the Agreement Documents then, at Dimachem’s request, Contractor shall, at Contractor’s expense, promptly remove from the premises all Work determined by the Dimachem to be erroneous, defective or not in accordance with the Agreement Documents. Contractor shall, at Contractor’s expense, promptly replace and re-execute all Work in accordance with the Agreement Documents, and shall restore all Work and work of other contractors and subcontractors damaged as a result of such removal, replacement and re-execution. Notwithstanding the foregoing, neither Dimachem’s payment to Contractor, nor any repair attempts under any warranty or guarantee, nor any provision in the Agreement Documents, shall relieve the Contractor of its responsibility to complete all Work in accordance with the Agreement Documents and to complete the Work free of any defects in material or workmanship. Dimachem’s rights under any guarantee or warranty are not exclusive and Dimachem shall continue to have all rights available to it at law or equity for Contractor’s failure to complete the Work in accordance with the Agreement Documents or Contractor’s breach of the Agreement.
- TERMINATION. Dimachem may terminate the Agreement with or without cause at any time on not less than two (2) days prior written notice to the Contractor.
- INDEMNITY. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless Dimachem, and its successors, assignees, agents, representatives, employees, officers and trustees from and against all claims, damages, liabilities, injuries, losses and expenses (including but not limited to attorneys’ fees and expenses), arising out of or resulting from (a) the willful misconduct or negligent acts or omissions of Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable; (b) breach of the Agreement; or (c) Contractor’s or a Subcontractors’ violation of any laws governing the Work or the Project. Contractor shall, at the Dimachem’s election, diligently defend any claim or suit brought against the Dimachem or any assignee of the Dimachem based upon any such injury, death, loss or damage, and shall pay all cost and expenses (including reasonable attorneys’ fees and expenses) in connection with such claim or suit, provided that the Dimachem or such assignee gives Contractor prompt written notice of such claim or suit and provides such reasonable assistance in connection therewith as Contractor may request. Contractor’s obligations under this section shall not be construed to negate, abridge, or reduce any other rights or obligations of indemnity which would otherwise exist as to a party or person described in this clause.
- INSURANCE. Contractor shall comply with Dimachem’s insurance requirements.
- NOTICE. All notices shall be made to the parties at their respective addresses as set forth in the Agreement.
- AUDIT RECORDS. Dimachem shall have the right to audit all charges made pursuant to the Agreement at any time and in its sole discretion. Contractor and its Subcontractors shall keep and maintain, in a commercially reasonable format acceptable to Dimachem, full and detailed records (“Audit Records”) and shall exercise such controls as may be necessary for proper financial management under the Agreement. Contractor shall produce and shall afford Dimachem and its representatives, access to inspect or reproduce all Audit Records which Dimachem may deem necessary to substantiate charges made pursuant to the Agreement. Contractor shall provide information and documents responsive to any request by Dimachem or its representative under within ten (10) business days of such request. The Contractor shall preserve these records for a period of three years after completion of the Work of the Agreement, or for such longer period as may be required by law.
- ATTORNEYS’ FEES. If either party asserts a claim, or commences legal action, under or in connection with the Agreement Documents, the prevailing party in such dispute shall be entitled to recover its reasonable attorneys’ fees and costs, including, without limitation, attorneys’ fees and court costs incurred at the trial and appellate levels, and in any bankruptcy, reorganization, insolvency, or other similar proceedings.
- JURISDICTION. The Agreement shall be governed by, and construed in accordance with, the laws of Ontario.
- ASSIGNMENT. The Agreement shall be binding upon Dimachem and Contractor, and their respective heirs, successors, executors and administrators. Contractor shall not have the power to assign the Agreement without the prior written consent of Dimachem. Any assignment without the prior written consent of Dimachem shall be void. No assignment shall relieve Contractor from any obligations herein unless expressly stated in the assignment and approved in writing by Dimachem.