CANADA TERMS AND CONDITIONS OF SALE – CERTAINTEED CANADA, INC. (“Seller”) – ROOFING PRODUCTS

Acceptance of this order and shipment of the materials and quantities listed are subject to the following Terms and Conditions of Sale (“Conditions”):

1. Failure to notify Seller immediately of any errors or of non-acceptance of the Conditions herein shall constitute acceptance by Buyer.
2. WARRANTY. Seller warrants only that materials shipped in accordance with this order shall meet Seller’s manufacturing specifications, classifications and standards of quality and grade, regardless of any trade term or designation specified. No material shall be returned, for any cause, without Seller’s prior written approval. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND SELLER SHALL NOT BE LIABLE FOR GENERAL, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. SELLER’S SOLE LIABILITY HEREUNDER SHALL BE LIMITED, AT SELLER’S OPTION, TO EITHER FURNISHING AN EQUAL QUANTITY OF NEW MATERIAL TO REPLACE DEFECTIVE MATERIAL OR TO REFUNDING THE PURCHASE PRICE. No representative of Seller, or its distributors or dealers, is authorized to modify this section or to issue any other warranty regarding materials delivered hereunder.
3. Seller shall not be liable for delays or failure to perform hereunder due to actual or threatened labor trouble, riot, civil commotion, war, fire, epidemic, act of God, or compliance with any order, rule or regulation of any governmental body or agency, transportation delays, shortage or failure of supply of power, fuel, raw materials or equipment or any other cause beyond Seller’s reasonable control.
4. Seller shall have the right to cancel this order, or any portion thereof, if unable to ship within the time specified or because of discontinuance of production of any item listed at the plant from which shipment is to be made.
5. FREIGHT, PACKAGING, AND DELIVERY. Freight charges to the destination, rail or truck, may be prepaid. Seller reserves the right to ship orders at the most economical rate. Where Buyer requests special packaging or handling the additional cost will be billed to buyer. Roofing products and accessories may be shipped on non-returnable pallets.
6. RISK OF LOSS. All shipments of goods hereunder shall be FOB Seller’s or Seller’s supplier’s plant. The risk of any damage, loss or shortage to said goods shall pass to Buyer upon delivery of said goods by Seller to the common carrier, even though Seller may agree to be responsible for costs of shipment. Any claims for loss, damage or breakage should be filed by Buyer with the Carrier in writing immediately on receipt of the material, supported by an inspection report or signed delivery receipt noting loss or damage. Non-defective returns may be subject to a restocking fee of 15% of the invoice price of the products returned, including any discounts. Buyer may in addition be assessed additional costs incurred by Seller that are directly associated with any such return, at Seller’s discretion. Such costs may include but are not limited to freight, handling, etc. No material shall be returned, for any cause, without Seller’s prior written approval and in no case will material be returned if such material is opened or not in the original packaging.
7. Any governmental taxes, good and services taxes or other taxes or charges applicable to this shipment at the time of shipment shall, at the option of Seller, be charged to, and paid by Buyer.
8. Shipment is subject to credit approval by Seller’s Credit Department.
9. In the event of a published price increase by Seller on any, or all, of the materials listed herein on which shipment did not occur prior to the effective date of the increase, such items will be shipped and invoiced at the price in effect at the time of shipment.
10. PAYMENT OF UNDISPUTED INVOICES. Invoices rendered by Seller covering goods not in dispute shall be paid by Buyer, regardless of disputes relating to other invoices or other delivered or undelivered goods, and as to such disputed invoices. Buyer waives the right to assert offsets, defenses, or counterclaims.
11. LIMITATION ON CIVIL ACTIONS. Buyer agrees than any civil action against Seller arising out of the contract for sale of goods hereunder shall be brought or commenced within one (1) year of the date the cause of action occurred; otherwise, it shall be barred. This limitation does not apply to those claims brought pursuant to a separate, written limited warranty.
12. The above Conditions will not be abrogated or altered, in any way, nor shall any collateral agreement be binding, unless covered in writing and signed by an officer of Seller. In the event of any conflict between the terms hereof and any purchase order of Buyer, the terms hereof shall govern. No modification of said Conditions shall be effective unless made in writing on a subsequent date hereof and executed by Seller. Acceptance by Buyer of any roofing materials delivered hereunder shall constitute acceptance of said Conditions.
13. The Conditions hereof shall be governed by and construed in accordance with the laws of the Province of Ontario.
14. INTERNATIONAL SALE OF GOODS. The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention) and the Convention on the Limitation period in the International Sale of Goods shall not apply to these Conditions.
15. SECURITY INTEREST. If the sale of merchandise is made in a province other than Quebec, Seller reserves and Buyer grants to Seller a purchase money security interest in all products sold and any cash receivables or cash from resale thereof to secure the full payment and performance by Buyer of its liabilities and obligations to Seller.

If the sale of merchandise is made in Quebec, the Buyer hereby hypothecates in Seller’s favour, without delivery, as a vendor’s hypothec (in accordance with Article 2954 of the Civil Code of Quebec), the merchandise identified in these Conditions, for an amount equal to the purchase price, plus interest, in order to guarantee Buyer’s obligations under these Conditions, including the payment of any amount due under these Conditions. The Buyer shall be in default under these Conditions, and the security interest/hypothec created hereunder shall become enforceable if: (a) Buyer fails to pay the balance of the invoice value when due or fails to remedy a default within thirty (30) days after being notified of such default by Seller; (b) Buyer ceases to carry on its business or substantially changes the nature of its business; (c) Buyer becomes or acknowledges being insolvent, becomes bankrupt or generally takes measures to arrive at a compromise, an arrangement or an agreement with its creditors, or arrives at the liquidation of its assets or its bankruptcy; (d) proceedings are instituted against the Buyer in order to liquidate its assets or declare it bankrupt, which are not diligently contested by the Buyer and are not dismissed or cancelled within twenty-one (21) days from the day on which they are instituted; (e) a prior notice is given by a creditor holding a prior claim or by a hypothecary creditor of its intention to exercise its prior claim or hypothecary rights or any other security, or if such right or security is exercised or if a secured creditor takes possession or appoints a receiver with respect to any part of the merchandise set out in these Conditions; or (f) a seizure is brought against the merchandise set out in these Conditions and should it not be quashed within ten (10) days thereafter.

Buyer acknowledges that this document may be filed with the appropriate authorities as a financing statement and/or hypothec and agrees to execute and deliver such documents as Seller may request in order to perfect its security interest/hypothec.