Terms and Conditions of Sale - Insulation - Canada
Acceptance of any order by CertainTeed (“CT”) is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. In the event that any of the terms or conditions of any purchase order, order confirmation or other communication of Buyer conflict with any of the terms and conditions set forth herein, these terms and conditions shall govern, and CT hereby gives notice of its objection to any additional or different terms or conditions in any such purchase order, order confirmation or communication.
- Acceptance of Orders – All orders are subject to acceptance by CT at its headquarters in Malvern, Pennsylvania, and CT reserves the right to accept or reject any order. Possession of a price list does not constitute an offer to sell. CT reserves the right to discontinue the manufacture or sale of any product at any time.
- Shipments – Quoted shipping dates are based on estimates at the time of quotation. CT will use its best efforts to meet such shipping dates, but CT shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries.
For orders with indefinite delivery dates, CT shall have the right to manufacture or procure the goods covered thereby and hold such goods for Buyer’s account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Buyer agrees to purchase, and will be charged for, all material ordered.
- Price – All prices are subject to change without notice. The price charged will be the price in effect at the time of shipment. Should any governmental action or request prevent CT from implementing any price or continuing any price already in effect, CT may cancel Buyer’s order or any part thereof. For customer convenience only, the price quoted includes product cost plus prepaid freight. This does not apply to customer pick- up orders. This does not alter the shipping terms stated in Items 8 and 9. The amount of freight prepaid on Buyer’s behalf will be shown separately on the invoice.
- Credit – Approval of Buyer’s credit is required prior to any shipment. If Buyer’s credit is unsatisfactory to CT at any time for any reason, CT reserves the right to suspend further deliveries or to require payment in advance. All rebates for which Buyer becomes eligible are subject to CT’s right of offset against outstanding amounts owed by Buyer.
- Terms of Payment – Our payment terms are as follows: 1% A.D.F. (After Deducting Freight,) if paid by 15th of the following month.
Invoices are payable in Canadian Dollars only. To be eligible for cash discounts, payments must be received on or before discount due date. All payments, whether under the standard payment terms or otherwise, shall be considered received by CT as follows: (A) For payments by check, when the check is received at CT’s designated payment location, and (B) for payments by Electronic Funds Transfer, the Business Day immediately preceding the day on which the funds are immediately available to CT. Net amount due at end of month following date of invoice. List prices are exclusive of all taxes and discounts.
If Buyer (i) becomes insolvent, or otherwise unable to pay its debts as they become due, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) fails to provide adequate assurance or security for credit extended, or (v) takes any other action that CT determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from Buyer hereunder shall at CT’s option become immediately due and payable.
- Taxes – All federal, provincial/state or local sales, use or other taxes, and all duties, import fees or other assessments, imposed on goods sold hereunder, or on the manufacture, sale or delivery thereof, shall be for Buyer’s account.
- Security Interest – If the sale of merchandise is made in a province other than Quebec, CertainTeed reserves and Buyer grants to CertainTeed 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 CertainTeed.
If the sale of merchandise is made in Quebec, the Buyer hereby hypothecates in CertainTeed'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 Terms and Conditions, for an amount equal to the purchase price, plus interest, in order to guarantee Buyer’s obligations under these Terms and Conditions, including the payment of any amount due under these Terms and Conditions.
The Buyer shall be in default under these Terms and 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 CertainTeed; (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 Terms and Conditions; or (f) a seizure is brought against the merchandise set out in these Terms and 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 CertainTeed may request in order to perfect its security interest/hypothec.
- Freight – Freight costs and related policies are governed under the Freight and Shipping Policies Section of CT’s Service Advantage Service Policy. If Buyer requests special packaging, handling and/or transportation, any additional cost(s) incurred shall also be charged to Buyer on the invoice. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, CT may, without any advance notice, increase the amount of freight charged to Buyer on the invoice to reflect such additional costs.
- Risk of Loss; Delivery – All shipments of goods hereunder shall be F.O.B. CT’s place of shipment. Title to, and the risk of any damage to or loss or shortage of, such goods shall pass to Buyer upon delivery of such goods by CT to Buyer’s carrier. Any claims for loss or damage should be filed by Buyer with the carrier in writing immediately upon receipt of the goods and should be supported by an inspection report or signed delivery receipt noting such loss or damage. In no event shall CT be liable for damage or loss to a shipment caused by any carrier.
- Claims and/or Complaints – All claims and complaints are governed under the Claims and Adjustments Section of CT’s Service Advantage Service Policy.
- Limitation of Liability – Except for products for which CT has established a specific written warranty, the products described herein are sold by CT without any guaranty and /or warranty, oral or written. Buyer assumes all risks, if any, including the risk of injury, loss or damage, whether direct, consequential or incidental, arising out of the use, misuse, or inability to use these products.
- Return of Goods – All returns of goods are governed under the Return Policies section of CT’s Service Advantage Service Policy. Goods may not be returned without the prior approval of an authorized CT representative. Only products identified as “standard” on the applicable price sheet and/or packaging data sheet in effect at the time such return is requested will be considered for return.
All freight costs incurred in the return of goods to the point of return designated by CT, plus a handling charge of fifteen percent (15%) of the invoice value of the returned goods, shall be charged to Buyer’s account. All returned goods must arrive at the point of return designated by CT in salable condition before any credit will be issued.
- Change Orders – Change orders are governed under the Order Policies section of CT’s Service Advantage Service Policy.
- Payment of Undisputed Invoices – Buyer shall pay any undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Buyer shall pay all amounts not in dispute. Buyer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by CT hereunder.
- Force Majeure – CT shall not be liable for delays or failure to perform hereunder for any cause beyond CT’s reasonable control, including without limitation: fire, flood or other casualty or Act of God; strikes or other labor trouble; shortage of labor, materials, fuel, or production facilities; delay or interruptions in transportation; war; embargoes; legal restrictions or actions of any governmental authority.
- Compliance – CT hereby certifies that these products were produced in compliance with all requirements of applicable federal and provincial labour laws.
- Change in Terms and Conditions of Sale – The terms and conditions contained herein constitute the entire agreement between CT and Buyer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the goods delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification of these terms and conditions shall be effective unless made in writing and executed by CT. In the absence of Buyer’s written acceptance of these terms and conditions, the acceptance by Buyer of any goods delivered hereunder shall constitute acceptance of these terms and conditions.
- Governing Law - These Terms and Conditions and any sales hereunder shall be governed by the laws of the Province of Ontario except for transactions occurring in the Province of Quebec in which case the laws of the Province of Quebec shall apply. CertainTeed and Buyer submit to the jurisdiction of the courts of the Province of Quebec for transactions occurring in that Province. For all other transactions, CertainTeed and Buyer submit to the jurisdiction of the courts in the Province of Ontario.
- Severability - If any provision of these terms and conditions of sale shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any other provisions hereof, which together shall be construed as if such illegal or unenforceable provisions had not been included herein.
- General – This agreement shall not be assigned by Buyer without the prior written consent of CT, and any assignment made without such consent shall be null and void. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
- English Language - The parties confirm that it is their wish that these Terms and Conditions as well as all other documents relating to these Terms and Conditions, including notices, be drawn up in English only. / Les parties aux présentes confirment leur volonté que les présentes conditions et tous documents accessoires soient rédigés en anglais
CERTAINTEED DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.