PRIVATE LABEL TERMS & CONDITIONS
(a) These terms and conditions (these "Terms") are the only terms
which govern the development and sale of products ("Products") and/or services
("Services") by ORGA-NIKO LABS (a division of NIKO Cosmetics Inc.) ("ORGA-NIKO") to
the client named on the ORGA-NIKO LABS private label program sign-up form, the Private
Label Program Customer Approval Form or order confirmation accepted by ORGA-NIKO,
as applicable (the "Sales Confirmation") to which these Terms are attached or
incorporated ("Client"). Notwithstanding anything herein to the contrary, if a written
contract signed by both parties is in existence covering the sale of the Products or
Services covered hereby, the terms and conditions of that contract shall prevail to the
extent they are inconsistent with these Terms.
(b) The accompanying Sales Confirmation and these Terms
(collectively, this "Agreement") comprise the entire agreement between the parties, and
supersede all prior or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written and oral. These Terms
prevail over any of Client's general terms and conditions of purchase regardless of
whether or when Client has submitted its purchase order or such terms. Fulfillment of
Client's order does not constitute acceptance of any of Client's terms and conditions and
does not serve to modify or amend these Terms. ORGA-NIKO may accept or refuse any
order for Products in its sole discretion.
(a) The Products will be delivered within a reasonable time after the
issuance of the Sales Confirmation, subject to availability of finished Products and the
delivery of any materials to be provided by Client pursuant to the Sales Confirmation (e.g.
packaging, labeling). ORGA-NIKO shall not be liable for any delays, loss or damage in
(b) Unless otherwise agreed in writing by the parties, ORGA-NIKO
shall deliver the Products to ORGA-NIKO’s facility in Toronto, Ontario (the "Delivery
Point") using ORGA-NIKO’s standard methods for packaging and shipping such Products
and Client shall take delivery of the Products within 3 days of ORGA-NIKO’s written notice
that the Products have been delivered to the Delivery Point and are available for
collection. Client shall be responsible for the collection and transportation of Products from
the Delivery Point (transportation to Client's facility must be by air transportation), and shall
be responsible for all loading costs and shall provide equipment and labour reasonably
suited for receipt of the Products at the Delivery Point. Client shall be responsible for
clearing Products for import and export, for compliance with any customs regulations, and
for the payment of any duties, tariffs, charges and other related costs. Client shall be
responsible for obtaining at its sole cost and expense any and all necessary licenses and
permits for the Products, including any licenses and permits for transportation.
(c) ORGA-NIKO may, in its sole discretion, without liability or penalty,
make partial shipments of Products to Client. Each shipment will constitute a separate
sale, and Client shall pay for the units shipped whether such shipment is in whole or partial
fulfillment of Client's order.
(d) If for any reason Client fails to accept delivery of any of the
Products on the date fixed pursuant to ORGA-NIKO’s notice that the Products have been
delivered at the Delivery Point, or if ORGA-NIKO is unable to deliver the Products at the
Delivery Point on such date because Client has not provided appropriate instructions,
documents, licences or authorizations: (i) risk of loss to the Products shall pass to Client;
(ii) the Products shall be deemed to have been delivered; and (iii) ORGA-NIKO, at its
option, may store the Products until Client picks them up, whereupon Client shall be liable
for all related costs and expenses (including, without limitation, storage and insurance).
(e) ORGA-NIKO shall use reasonable efforts to meet any performance
dates to render the Services specified in the Sales Confirmation, and any such dates shall
be estimates only.
(f) With respect to the Services, Client shall (i) cooperate with ORGANIKO
in all matters relating to the Services; (ii) respond promptly to any ORGA-NIKO
request to provide direction, information, approvals, authorizations or decisions that are
reasonably necessary for ORGA-NIKO to perform Services in accordance with the
requirements of this Agreement; (iii) provide such customer materials or information as
ORGA-NIKO may request to carry out the Services in a timely manner and ensure that
such customer materials or information are complete and accurate in all material respects;
and (iv) obtain and maintain all necessary licenses and consents and comply with all
applicable laws in relation to the Services before the date on which the Services are to
(a) The quantity of any installment of Products as recorded by ORGA-NIKO
on dispatch from ORGA-NIKO’s place of business is conclusive evidence of the
quantity received by Client on delivery unless Client can provide conclusive evidence
proving the contrary.
(b) The ORGA-NIKO shall not be liable for any non-delivery of
Products (even if caused by ORGA-NIKO’s negligence) unless Client gives written notice
to ORGA-NIKO of the non-delivery within 3 days of the date when the Products would in
the ordinary course of events have been received.
(c) Any liability of ORGA-NIKO for non-delivery of the Products shall
be limited to replacing the Products within a reasonable time or adjusting the invoice
respecting such Products to reflect the actual quantity delivered.]
If ORGA-NIKO delivers to Client a quantity of Products of up to 15%
more or less than the quantity set forth in the Sales Confirmation, Client shall not be
entitled to object to or reject the Products or any portion of them by reason of the surplus
or shortfall and shall pay for such Products the price set forth in the Sales Confirmation
adjusted pro rata.
5. Title and Risk of Loss.
Title and risk of loss passes to Client upon delivery of
the Products at the Delivery Point. As collateral security for the payment of the purchase
price of the Products, Client hereby grants to ORGA-NIKO a lien on and security interest
in and to all of the right, title and interest of Client 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. The security interest granted under this
provision constitutes a purchase money security interest under the Personal Property
Security Act (Ontario).
6. Amendment and Modification. This Agreement may only be amended or
modified in a writing which specifically states that it amends this Agreement and is signed
by an authorized representative of each party.
7. Inspection and Rejection of Non-conforming Products.
(a) Client shall inspect the Products within 3 days of receipt
("Inspection Period"). Client will be deemed to have accepted the Products unless it
notifies ORGA-NIKO in writing of any Non-conforming Products during the Inspection
Period and furnishes such written evidence or other documentation as required by ORG-ANIKO.
"Non-conforming Products" means only the following: (i) product shipped is
different than identified in the Sales Confirmation; or (ii) product's label or packaging
incorrectly identifies its contents.
(b) If Client timely notifies ORGA-NIKO of any Non-conforming
Products, ORGA-NIKO shall, in its sole discretion, (i) replace such Non-conforming
Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming
Products, together with any reasonable shipping and handling expenses
incurred by Client in connection therewith. Client shall ship, at its expense and risk of loss,
the Non-conforming Products to ORGA-NIKO’s facility located in Toronto, Ontario. If
ORGA-NIKO exercises its option to replace Non-conforming Products, ORGA-NIKO shall,
after receiving Client's shipment of Non-conforming Products, ship to Client, at Client's
expense and risk of loss, the replaced Products to the Delivery Point.
(c) Client acknowledges and agrees that the remedies set forth in
Section 7(b) are Client's exclusive remedies for the delivery of Non-conforming Products.
Except as provided under Section 7(b), all sales of Products to Client are made on a one way
basis and Client has no right to return Products purchased under this Agreement to
(a) Client shall purchase the Products and Services from ORGA-NIKO
at the prices (the "Prices") set forth in ORGA-NIKO’s published price list in force as of the
date of the Sales Confirmation.
(b) All Prices are exclusive of all harmonized sales tax, goods and
services tax, sales tax, value added tax, 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 Client, all of which are payable by Client.
9. Payment Terms.
(a) Client shall pay all invoiced amounts in accordance with the
specifications (including currency) set out in the applicable Sales Confirmation. Any
deposits paid by Client pursuant to a Sales Confirmation or other document shall be
applied to invoiced amounts.
(b) Client shall pay interest on all late payments at the lesser of the
rate of 1.5% per month or the highest rate permissible under applicable law, calculated
daily and compounded monthly. Client shall reimburse ORGA-NIKO for all costs incurred
in collecting any late payments, including, without limitation, legal fees. In addition to all
other remedies available under these Terms or at law (which ORGA-NIKO does not waive
by the exercise of any rights hereunder), ORGA-NIKO shall be entitled to suspend the
delivery of any Products if Client fails to pay any amounts when due hereunder and such
failure continues for 60 days following written notice thereof.
(c) Client shall not withhold payment of any amounts due and payable
by reason of any set-off of any claim or dispute with ORGA-NIKO, whether relating to
ORGA-NIKO’s breach, bankruptcy or otherwise.
10. Limited Warranty.
(a) ORGA-NIKO warrants to Client that for a period of 6 months from
the date of shipment of the Products ("Warranty Period"), that such Products will
materially conform to the Product sample approved by the Client and ORGA-NIKO’s
published specifications in effect as of the date of manufacture and will be free from
material defects in material and workmanship
(b) ORGA-NIKO warrants to Client that it shall perform the Services
using personnel of required skill, experience and qualifications and in a professional and
workmanlike manner in accordance with generally recognized industry standards for
similar services and shall devote adequate resources to meet its obligations under this
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION
10(a) AND SECTION 10(b), SELLER MAKES NO CONDITION OR WARRANTY
WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING
ANY (i) CONDITION OR WARRANTY OF MERCHANTABILITY; (ii) CONDITION OR
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) CONDITION OR
WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR
IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE OR OTHERWISE.
(d) ORGA-NIKO shall not be liable for a breach of the warranties set
forth in Section 10(a) or Section 10(b) unless: (i) Client gives written notice of the defective
Products or Services, as the case may be, reasonably described, to ORGA-NIKO within
30 days of the time when Client discovers or ought to have discovered the defect; (ii)
ORGA-NIKO is given a reasonable opportunity after receiving the notice of breach of the
warranty set forth in Section 10(a) to examine such Products and Client (if requested to do
so by ORGA-NIKO) returns such Products to ORGA-NIKO’s place of business at ORGA-NIKO’s
cost for the examination to take place there; and (iii) ORGA-NIKO verifies, acting
reasonably, Client's claim that the Products and Services are defective.
ORGA-NIKO shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i)
Client makes any further use of such Products after giving such notice; (ii) the defect
arises because Client failed to follow ORGA-NIKO’s oral or written instructions as to the
storage (products must be stored and shipped within temperature ranges of 15°C-24°C),
use or maintenance of the Products; or (iii) Client alters such Products without the prior
written consent of ORGA-NIKO.
(e) Subject to Section 10(d) and Section 10(e) above, with respect to
any such Products during the Warranty Period, ORGA-NIKO shall, in its sole discretion,
either: (i) replace such Products or (ii) credit or refund the price of such Products provided
that, if ORGA-NIKO so requests, Client shall, at ORGA-NIKO’s expense, return such
Products to ORGA-NIKO.
(f) Subject to Section 10(d) above, with respect to any Services
subject to a claim under the warranty set forth in Section 10(b), Seller shall, in its sole
discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of
such Services at the pro rata contract rate.
(g) THE REMEDIES SET FORTH IN SECTION 10(f) AND SECTION
10(g) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S
ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH
IN SECTION 10(a) AND SECTION 10(b), RESPECTIVELY.
11. Limitation of Liability.
(a) IN NO EVENT SHALL ORGA-NIKO BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE
DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING
OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT
THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY
BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER,
REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR
OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL ORGA-NIKO’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF
OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ORGA-NIKO FOR
THE PRODUCTS AND SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 11(b) above shall not
apply to (i) liability resulting from ORGA-NIKO’s gross negligence or wilful misconduct and
(ii) death or bodily injury resulting from ORGA-NIKO’s acts or omissions.
12. Intellectual Property.
(a) Client acknowledges and agrees that: (a) except to the extent
provided in a separate written agreement between Client and ORGA-NIKO, ORGA-NIKO
(or its licensors) will retain all intellectual property rights, including rights in the nature of
copyright, patents, inventions (whether patentable or not), know-how, trade-marks service
marks, trade secrets, know-how and other confidential information, trade dress, trade
names, logos, corporate names and domain names (collectively, "Intellectual Property
Rights"), together with all of the goodwill associated therewith, derivative works and all
other rights used to create, embodied in, used in and otherwise relating to the Products
and any component thereof or the Services and any results or derivatives thereof, other
than such rights or property in Client Materials (as defined below); (b) all Intellectual
Property Rights of ORGA-NIKO are the sole and exclusive property of ORGA-NIKO or its
licensors; (c) Client shall not acquire any ownership interest in any of ORGA-NIKO’s
Intellectual Property Rights under this Agreement; (d) any goodwill derived from the use by
Client of ORGA-NIKO’s Intellectual Property Rights inures to the benefit of ORGA-NIKO or
its licensors, as the case may be; (e) if Client acquires any Intellectual Property Rights in
or relating to any Product purchased under this Agreement (including any rights in any
trade-marks, derivative works or patent improvements relating thereto), by operation of
law, or otherwise, such rights are deemed and are hereby irrevocably assigned to ORGANIKO
or its licensors, as the case may be, without further action by either Party; and (f)
Client shall use ORGA-NIKO’s Intellectual Property Rights only in accordance with this
Agreement and any instructions of ORGA-NIKO.
(b) Client represents and warrants to ORGA-NIKO that any samples,
specifications, schematics, packaging, formula, artwork, labels, illustrations, and any other
materials provided by Client to ORGA-NIKO ("Client Materials") will not infringe or
misappropriate the Intellectual Property Rights of any third party.
Client shall indemnify, defend and hold harmless ORGA-NIKO
and its officers, directors, employees, agents, affiliates, successors and assigns
(collectively, the "Indemnified Party") against any and all losses, damages, liabilities,
deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines,
costs, or expenses of whatever kind, including legal fees, and the costs of enforcing any
right to indemnification under this Agreement and the cost of pursuing any insurance
providers, incurred by Indemnified Party relating to, arising out of or resulting from any
claim of a third party arising out of or occurring in connection with: (a) the Products
purchased from ORGA-NIKO; (b) any claim that the Client Materials infringe or
misappropriate the Intellectual Property Rights of any third party; or (c) Client's negligence,
wilful misconduct or breach of this Agreement. Client shall not enter into any settlement
without ORGA-NIKO’s or Indemnified Party's prior written consent.
During the term of this Agreement, Client shall, at its own expense,
maintain and carry insurance in full force and effect which includes, but is not limited to,
commercial general liability (including product liability) in a sum no less than $1,000,000
per occurrence and $1,000,000 general aggregate with financially sound and reputable
insurers. Upon ORGA-NIKO’s request, Client shall provide ORGA-NIKO with a certificate
of insurance from Client's insurer evidencing the insurance coverage specified in these
Terms. The certificate of insurance shall name ORGA-NIKO as an additional insured.
Client shall provide ORGA-NIKO with 30 days' advance written notice in the event of a
cancellation or material change in Client's insurance policy. Except where prohibited by
law, Client shall require its insurer to waive all rights of subrogation against ORGA-NIKO’s
insurers and ORGA-NIKO.
15. Compliance with Law.
Client shall comply with all applicable laws, regulations
and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations,
consents and permits that it needs to carry out its obligations under this Agreement. Client
shall comply with all export and import laws of all countries involved in the sale of the
Products under this Agreement or any resale of the Products by Client. Client assumes all
responsibility for shipments of Products requiring any government import clearance.
ORGA-NIKO may terminate this Agreement if any governmental authority imposes
antidumping or countervailing duties or any other penalties on Products.
In addition to any remedies that may be provided under these
Terms, ORGA-NIKO may terminate this Agreement with immediate effect upon written
notice to Client, if Client: (i) fails to pay any amount when due under this Agreement; (ii)
has not otherwise performed or complied with any of these Terms, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced
against it proceedings relating to bankruptcy, receivership, reorganization or assignment
for the benefit of creditors.
No waiver by ORGA-NIKO of any of the provisions of this Agreement
is effective unless explicitly set forth in writing and signed by ORGA-NIKO. No failure to
exercise, or delay in exercising, any right, remedy, power or privilege arising from this
Agreement operates, or may be construed, as a waiver thereof. No single or partial
exercise of any right, remedy, power or privilege hereunder precludes any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information.
All non-public, confidential or proprietary information
of each party, including but not limited to specifications, samples, patterns, designs, plans,
drawings, documents, data, business operations, customer lists, pricing, discounts or
rebates, disclosed by such party to the other party, whether disclosed orally or disclosed
or accessed in written, electronic or other form or media, and whether or not marked,
designated or otherwise identified as "confidential" in connection with this Agreement is
confidential, solely for the use of performing this Agreement and may not be disclosed or
copied unless authorized in advance by the disclosing party in writing. Upon the disclosing
party's request, the receiving party shall promptly return all documents and other materials
received from the disclosing party. The disclosing party shall be entitled to injunctive relief
for any violation of this Section. This Section does not apply to information that is: (a) in
the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully
obtained by the receiving party on a non-confidential basis from a third party.
19. Force Majeure.
The ORGA-NIKO shall not be liable or responsible to Client,
nor be deemed to have defaulted or breached this Agreement, for any failure or delay in
fulfilling or performing any term of this Agreement when and to the extent such failure or
delay is caused by or results from acts or circumstances beyond the reasonable control of
ORGA-NIKO 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,
epidemic, 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
Client shall not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of ORGA-NIKO. Any
purported assignment or delegation in violation of this Section is null and void. No
assignment or delegation relieves Client of any of its obligations under this Agreement.
21. Relationship of the Parties.
The relationship between the parties is that of
independent contractors. Nothing contained in this 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.
22. No Third-Party Beneficiaries.
his 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 these
23. Governing Law.
All matters arising out of or relating to this Agreement is
governed by and construed in accordance with the laws of the Province of Ontario and the
federal laws of Canada applicable in that Province without giving effect to any choice or
conflict of law provision or rule (whether of the Province of Ontario or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than
those of the Province of Ontario. The parties agree that the United Nations Convention on
Contracts for the International Sale of Products does not apply to this Agreement.
24. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of
or relating to this Agreement shall be instituted in the courts of the Province of Ontario in
each case located in the City of Toronto, and each party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other
communications hereunder (each, a "Notice") shall be in writing and addressed to the
parties at the addresses set forth on the face of the Sales Confirmation or to such other
address that may be designated by the receiving party in writing. All Notices shall be
delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid),
facsimile (with confirmation of transmission) or certified or registered mail (in each
case, return receipt requested, postage prepaid). Except as otherwise provided in this
Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the
party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond
their terms will remain in force after any termination or expiration of this Order including,
but not limited to, the following provisions: Confidential Information, Intellectual Property,
Indemnification, Governing Law, Submission to Jurisdiction, and Survival.
28. Packaging. It is the purchaser's sole responsibility to determine the
compatibility of their product with the packaging they intend to use. We make no
guarantee, warranty, or recommendation for any intended use and specifically caution that
many products are not compatible with certain plastics, glass and or metals.