General Terms & Conditions

Terms Applicable to all Customer Agreements

1. Applicability
These General Terms and Conditions are incorporated by reference into all Chemsyn Service and Supply Agreements, including each (i) “Product Supply and Service Agreement – Customer Owned Equipment”, (ii) “Equipment Rental, Product Supply and Service Agreement” and (ii) “Corporate Service &; Supply Agreement” (in each case, a “Customer Agreement”). Capitalized terms not otherwise defined in these General Terms and Conditions shall have the meanings given in the applicable Customer Agreement. In these General Terms and Conditions, “Equipment” means Customer Owned Equipment, Rental Equipment and Leased Equipment.

2. Invoicing
Customer shall pay all amounts due within 30 days of the date of each applicable invoice, or on such other terms as provided on the applicable invoice. Any payments not received by Chemsyn on or before the due date will be subject to an interest charge on the unpaid balance equal to the letter of i) 3% per month and ii) the maximum interest permitted under applicable law. The amount of any and all applicable taxes shall be added to the price and paid by Customer unless Customer has provided Chemsyn with exemption certificates acceptable to the taxing authorities and to Chemsyn acting reasonably. Chemsyn may cancel extended payment terms if customer fails to keep its account in good standing, or for any other reason in Chemsyn’s sole discretion. All payments must be made to Chemsyn in Canadian Dollars.

3. Safety Data Sheets
All Products will be supported by Safety Data Sheets (SDS) that comply with government regulated WHMIS classifications.

4. Packing
All orders will be delivered with a packing slip in either paper or electronic form, as determined at Chemsyn’s sole discretion. Customer is responsible to confirm that all goods listed on the packing slip are delivered before signing. If the packing slip does not match the goods delivered, all missing goods should be noted on the packing slip. In this circumstance, Chemsyn may choose to either deliver the missing goods or issue a credit to be applied to the original invoice.

5. Taxes etc
Customer shall pay all payments due under Chemsyn’s then-current shipping and restocking fee policies and for any bulk delivery charges, as well as all sales use, personal property and similar taxes related to the Agreement and to all Products provided under this agreement.

6. Limited Warranty
Chemsyn warrants that all products, at the time of shipment to Customer will meet Chemsyn’s standard written specifications then in effect and will be fit for the uses and purposes described in Chemsyn’s Product literature. The Services will be in a good and workerlike manner. As Customer’s sole remedy for breach of the foregoing warranties, Chemsyn will, in its reasonable discretion, either replace any Product or re-perform any Services which Chemsyn, acting reasonably determines did not meet these warranties at the time the Products were shipped to the Customer (or at the time the Services were rendered) or refund the purchase price paid by the Customer for Products or Services in breach of these warranties. Any claim under the above noted warranties must be made by Customer within 15 days after receipt of the defective Products by any Customer or Customer Distributor. These warranties do not apply to (i) damage resulting from misuse, neglect, accident, or improper use of any of the Products or Equipment or (ii) any Product or Equipment having been altered by any person or entity other than Chemsyn. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ARE DISCLAIMED. CHEMSYN DISCLAIMS LIABILITY TO CUSTOMER AND OTHERS, AND CUSTOMER WAIVES, ALL CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES CAUSED BY, RELATED TO OR ARISING FROM THE PRODUCTS OR SERVICES SUPPLIED BY CHEMSYN.

7. Third Party Recall
Each party shall inform the other by telephone or email forthwith after it shall have notice of any recall of Products ordered by any government authority having jurisdiction or by applicable Product manufacturer. Chemsyn and Customer will cooperate in implementing such recall.

8. Monthly Minimum Amount
If Customer fails to purchase the Minimum Amount of Products in any calendar month, Chemsyn or Distributor may invoice, and Customer shall pay, a fee equal to the difference between the actual amount purchased during such month and the Minimum Amount. For this purpose, purchases shall be calculated at current prices in effect at the time of product delivery.

9. Renewal
At expiry of the Term, the Customer Agreement shall be automatically renewed for successive one-year periods (each, a “Renewal) unless either party shall have given not less than 90 days’ written notice of termination effective as of any Renewal date.

10. Termination
Chemsyn may terminate this Customer Agreement at any time and immediately upon notice to the Customer, upon the occurrence of any of the following events:

1. Expiration of the Term or any Renewal thereof;
2. Breach by Customer in the performance of any of its material obligations herein, including non-payment or late payment of amounts owing to Chemsyn;
3. Appointment of receiver to property of Customer, or assignment for the benefit of creditors of the Customer;
4. Liquidation of Customer’s business for any reason whatsoever.

11. On any termination hereof other than at the expiration of the Term or Renewal Term, Customer shall pay Chemsyn an amount, which the parties agree is an estimate of liquidated damages and not a penalty, equal to 50% of the Minimum Amount multiplied by the number of months remaining in the Term or then-current Renewal, as of the date of default, times, where applicable, the number of Customer Locations effected by the termination.

12. Should any balances be owing to Chemsyn at the time of termination, such amounts are due and payable immediately. In the event that the Customer fails or refuses to pay and the debt is subject to collections, the customer will be liable for and shall pay any debt recovery charges levied by the collection agency to Chemsyn.

13. Assignment
Customer may not assign this Agreement or its rights hereunder without the prior written consent of Chemsyn. Chemsyn may assign, encumber or grant a security interest in its rights to the Equipment and its interest in the Agreement.

14. Authority to be Bound
Customer represents that it has full right and authority to enter into this Agreement and grants permission to Chemsyn to perform services, maintenance and repairs on equipment that is located at each premises where Rental Equipment or Dispensing Equipment is located.

15. Indemnification
Customer assumes full responsibility for, and shall indemnify, defend and hold Chemsyn and its officers, directors, employees and agents harmless from, any liability, loss, expense (including reasonable attorneys’ fees and disbursements), or claim, relating to bodily injury, death or property damage (“Losses”) but only to the extent that Losses are caused by (i) Customer’s breach of this Agreement; or (ii) the negligent or intentional misconduct of Customer or its employees or agents.

16. Exclusive Supply
Customer will purchase from Chemsyn or such other distributor as shall have been approved in writing by Chemsyn (each, an “Approved Distributor), all chemical products of the type and category identified as Products, including but not limited to detergents, rinse additives, and sanitizing solutions necessary for the operation of Equipment to be maintained pursuant to the Services. Customer will not use any chemicals in the operation of the Equipment except those Products purchased from Chemsyn or through an Approved Distributor. At any time during this agreement Chemsyn may replace or substitute a Product with a new product providing the new product performs substantially similar or better than the original product as determined by Chemsyn acting reasonably. During the term of this Agreement Customer will instruct its approved distributors who may be delivering product to Customer locations to make available to Customer Locations, and to list only Products supplied by Chemsyn and Approved Distributors in the order guides and catalogs used by the Customer and its employees.

17. Dispensers
In consideration of the exclusive supply provisions of the Customer Agreement, Chemsyn will supply and install dispensers for the Products Chemsyn onto Customer Owned Equipment, Rental Equipment and Leased Equipment (as applicable) at no additional charge during the Term and each Renewal. Products are for Customer’s own use and shall not be resold. The Customer Agreement applies only to Customer Locations (if applicable) and the Customer properties and facilities (i) that are owned or operated by the Customer under Customer’s brand; and (ii) that are located in Canada.

18. No-Charge Maintenance
In consideration of the exclusive supply provisions of the Customer Agreement, Chemsyn will provide regular preventative maintenance and repair service at no additional charge to the Customer, on all warewash Equipment and chemical dispensers installed thereon and that use only Products purchased from Chemsyn and Approved Distributors hereunder and use no other chemicals in substitution for Products. Customer Owned Equipment and Leased Equipment parts that are not covered under an Equipment manufacturer’s warranty shall be replaced by Chemsyn with the Customer’s consent and at Customer’s expense. Rental Equipment parts will be replaced by Chemsyn at no cost to the Customer.

19. Customer Service
Service is available 24 hours a day, 7 days a week, subject to reasonable limitations based on volume. All service calls can be placed through the Chemsyn Customer Service (1-833-888-2436) phone line any hour of the day. The frequency of preventative maintenance service visits will be determined by Chemsyn, acting reasonably. Chemsyn may increase or decrease the frequency of preventative maintenance visits based on Equipment needs as determined by Chemsyn in its sole discretion.

20. Exclusions
Chemsyn is not responsible for any of the following, each of which is expressly excluded from the Complimentary Services:

1. Maintenance and repair parts on any Equipment other than Rental Equipment;
2. Maintenance and repair, labour parts, of laundry equipment, except laundry chemical dispensing equipment provided by Chemsyn;
3. Neglect, misuse, abuse or poor maintenance of Equipment by the Customer.

21. Limitation
Chemsyn shall not be liable for any loss or damages, direct, indirect or consequential, caused or contributed to by: (i) failure of the Equipment to operate for any reason; (ii) faulty operation of Equipment whether or not maintained pursuant to the Services; or (iii) the use or operation of Equipment. Each party shall indemnify and hold the other harmless from any and all liability, claim, or expense (including reasonable attorney fees) arising out of the breach of any of the terms and conditions hereof or arising out of the indemnifying party’s use of the Equipment.

22. Notices
Except as provided below, any notices and demands required to be given to the Customer hereunder shall be given to the Customer in writing at the address specified on the Customer Agreement, and may at the election of Chemsyn be sent via email to the Customer contact on file, or by registered mail at the address herein set forth, or to such other address as the Customer shall hereafter advise in writing. Any notices and demands required to be given to Chemsyn herein shall be in writing and sent by registered mail at the address herein set forth, or to such other address as Chemsyn may advise in writing. Any notice of changes to Exhibit A or B, shall be by email and shall be deemed (i) given on the date of transmission; and (ii) to have been given to Customer, all Customer Entities and all Purchasing Entities (as applicable), and it shall be the sole responsibility of Customer to disseminate such notices among them.

If to Chemsyn:
Chemsyn Services
97 Saramia Crescent
Concord, ON L4K 4P7
Attention: Domenic Buda
Email: DBuda@Chemsyn.com

With a copy to:
Chemsyn Services
97 Saramia Crescent
Concord, ON L4K 4P7
Attention: Customer Service

23. Default
Each of the following shall be an event of default hereunder by the Customer (“Default”):

1. the Customer shall fail to make any payment of Rent or other payment required hereunder when due and such failure shall continue unremedied for a period of 30 days after written notice by Chemsyn;
2. the Customer attempts to dispose of or encumbers any Rental Equipment;
3. any breach of the provisions of paragraph 35.

In the event of a Default, the Customer shall pay Chemsyn an amount, which the parties agree is an estimate of liquidated damages and not a penalty, equal to 50% of the Minimum Amount multiplied by the number of months remaining in the Term or then-current Renewal, as of the date of Default

24. Language
The parties hereto agree that this document be written in the English language. Les parties aux présentes conviennent que ce document soit rédigé en anglais.

25. Miscellaneous

1. Time is of the essence with respect to this agreement and no waiver by Chemsyn of any breach or Default shall constitute a waiver of any other breach or Default by the Customer or waiver of any other Chemsyn right herein or at law.
2. Should the Customer fail to perform any obligation hereunder, Chemsyn may cause such obligation to be performed and the cost thereof together with interest at a rate of 3% per month as additional fees shall be paid by the Customer.
3. If any provision of this agreement is to any extent illegal, void or unenforceable, the remainder of this agreement shall be unaffected and remain in full force and effect and this agreement shall be construed as if such illegal, invalid or unenforceable provision had never been contained in it.
4. This agreement and all documents referred to in it or contemplated by it together constitute the entire agreement between the parties, contain all of the terms and conditions they have agreed upon, and supersede and cancel all their prior agreements, negotiations, commitments, conditions, representations, warranties and undertakings, oral or written, expressed or implied, concerning the subject matter of this agreement.
5. This Agreement is governed in accordance with the laws of the province of Ontario.

26. Publicity
Each Party will obtain the other Party’s prior written consent before making any public communication related to this Agreement or the Each Party will obtain the other Party’s prior written consent before making any public communication related to this Agreement or the Services. Notwithstanding the foregoing: (i) Chemsyn may issue a press release announcing the relationship between Customer and Chemsyn, provided Customer, acting reasonably shall have the right to review and approve the press release prior to distribution; (ii) Chemsyn may list Customer as a customer of Chemsyn on the Chemsyn website and on other Chemsyn sales and promotional materials; and (iii) for each of these purposes, Chemsyn may make reasonable use of Customer’s logos and trademarks. Any Chemsyn use of Customer’s logos and trademarks will be subject to any reasonable and applicable trademark use guidelines provided by Customer to Chemsyn from time to time.

27. Counterparts
The Customer Agreement may be executed in counterparts and by electronic signature, including DocuSign. All such counterparts shall be considered a single instrument and all scanned or electronic signatures shall be considered original signatures of the parties.

28. Amendments
Chemsyn may amend or modify these General Terms and Conditions in its sole discretion on notice to the Customer.

Provisions Applicable to “Equipment Rental, Product Supply and Service Agreement” (Paragraphs 29 to 37)

29. Rental Equipment
Rental Equipment is and shall at all times be the sole property of Chemsyn, except for Rental Equipment that shall purchased outright by Customer, and title thereto shall transfer to Customer only once the purchase price for Rental Equipment shall have been paid in full.

30. Maintenance of Rental Equipment
Chemsyn shall provide the Equipment and parts and services as required to maintain Rental Equipment in good working operation, provided that if damage to the equipment is caused by any act or omission of the Customer, its officers, employees, or agents, including failure to undertake routine daily maintenance as instructed by Chemsyn, the Customer shall pay Chemsyn for repairs, parts and labour in accordance with Chemsyn’s service policies at the rates then in effect.

31. Installation
If Chemsyn is responsible for installation of Rental Equipment pursuant to the Customer Agreement, the Customer will provide, at its expense (i) space in the kitchen, dish room or bar area as required for the Rental Equipment; (ii) removal of any disconnected machine from the dish room, kitchen, or bar area; (iii) the necessary utilities (water pressure, temperature, and electricity) required by local building codes applicable; (iv) electrical supply line appropriate for equipment rented in accordance with the manufacturer’s specifications for phase, voltage and amps; (v) all required plumbing and electrical connections; (vi) all applicable government permits; and (vii) all sheet metal materials required for installation. The Customer shall provide the necessary utilities (water pressure, temperature, and electricity) for on-going satisfactory performance of the Equipment during its time in operation at the Customer site.

32. Equipment Rental Fees
Equipment Rental Fees are due immediately upon receipt by Customer of each monthly Equipment Rental Fee invoice. All Equipment Rental Fees shall be paid by Customer by pre-authorised monthly payments (EFT). On any termination hereof other than at the expiration of the Term or Renewal Term, in addition to the amount payable pursuant to paragraph 12 above, Customer shall pay Chemsyn a further amount, which the parties agree is an estimate of liquidated damages and not a penalty, equal to the aggregate Equipment Rental Fees otherwise payable for the remainder of the Term or then-current Renewal, as of the date of termination.

33. Title to Rental Equipment
Title to Rental Equipment shall remain solely and exclusively with Chemsyn. Customer shall keep the Equipment free from any and all liens, claims, and security interest and shall do or permit no act or thing whereby Chemsyn’s title or rights may be encumbered or impaired. Customer will not change, alter or repair Rental Equipment without the express written consent of Chemsyn, which consent may be withheld in Chemsyn’s sole discretion. Customer shall not and shall cause its landlord not to remove the Rental Equipment or any of its components from the location where the Rental Equipment is installed and/or operated; Customer shall obtain from the Landlord an agreement waiving all the Landlord’s rights in and to the Rental Equipment, in form satisfactory to Chemsyn. Chemsyn and its authorized representatives shall at all times have the right of reasonable access to the Rental Equipment for the purposes of providing services required here in and for the purpose of protecting its rights hereunder.

34. Alterations and Repairs
Customer will not change, alter or repair the Equipment or use of any detergents or sanitizers in the operation of the Rental Equipment except those supplied by Chemsyn or otherwise authorized by Chemsyn in writing for use in the Rental Equipment. Customer shall use the Rental Equipment in a careful and proper manner and will undertake routine daily maintenance as instructed by Chemsyn. Use of unauthorized chemicals including detergents, sanitizers or rinse additive in Rental Equipment shall be an event of Default.

35. Damage
Chemsyn shall not be responsible for unsatisfactory performance of the Rental Equipment caused by Customer’s failure to follow operating instructions including use of improper or unapproved chemicals, Customer’s abuse of Rental Equipment or any other abnormal operation of Rental Equipment by the Customer or its personnel. In the event of damage to the Rental Equipment, Customer shall pay for all repair parts, labour and service by Chemsyn or its agent at the current applicable prices.

36. Security Deposit
Upon receipt of the Security Deposit, Chemsyn will reserve existing equipment inventory on hand for installation of Rental Equipment at Customer’s premises, or place an order on its suppliers for Rental Equipment specified in the Customer Agreement. The Security Deposit shall be applied to the last month’s Rent. Notwithstanding the foregoing, the Security Deposit may be applied by Chemsyn toward the due performance any of the Customer’s obligations and liabilities under the Customer Agreement, including, without limitation, damage due to incorrect installation of Rental Equipment by the Customer’s installers, misuse of Rental Equipment by the Customer’s personnel or default in payment of any Rent or other charge. The Rent shall be billed monthly in advance and the Customer shall pay Rent immediately upon receipt of Chemsyn’s Invoice. Non-receipt of Chemsyn’s Invoice does not relieve the Customer of the obligation to pay Rent by the due date.

37. Insurance
Customer shall obtain and maintain for the entire Term and each Renewal, at its own expense, property damage and liability insurance and insurance against loss or damage to the Rental Equipment, including without limitation, loss by fire or theft and such other risks of loss in accordance with normal industry standards, in an amount which will cover the full replacement value of the Rental Equipment from time to time. The Customer shall also maintain general liability insurance covering personal injury to or death of any person and damage to property arising from the Customer’s use or possession of the Rental Equipment. All such insurance shall show Chemsyn as an additional named insured, shall name Chemsyn as first loss payee with respect to the Rental Equipment and shall contain a clause requiring the insurer to give Chemsyn at least 15 days prior written notice of any alteration to the terms of such policy of the cancellation thereof. The Customer shall provide Chemsyn with certificate(s) of Insurance at Chemsyn’s request. Customer will at its expense make all proofs of loss and take all other steps necessary to recover insurance benefits on behalf of Chemsyn as provided herein, however, Chemsyn may do so if it deems if necessary or desirable, at the Customer’s expense.