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Terms and Conditions of Sale - Vi-Lux Building Products Inc.

Acceptance of any order by Vi-Lux Building Products Inc. (“Vi-Lux”) is expressly conditioned on Buyer's assent to the terms and conditions set forth or referenced herein. In the event 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 or referenced herein, these terms and conditions shall govern, and Vi-Lux hereby gives notice of its objection to any additional or different terms or conditions in any such purchase order, order confirmation or communication.

1. ACCEPTANCE OF ORDERS - All orders are subject to acceptance by Vi-Lux at the manufacturing or distribution location listed on the face of the invoice, and Vi-Lux reserves the right to accept or reject any order. Possession of a price list does not constitute an offer to sell. Vi-Lux reserves the right to discontinue the manufacture or sale of any product at any time.

2. SHIPMENTS - Quoted shipping dates are based on estimates at the time of quotation. Vi-Lux will use its reasonable commercial efforts to meet such shipping dates, but Vi-Lux 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, Vi-Lux 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.

3. 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 Vi-Lux from implementing any price or continuing any price already in effect, Vi-Lux may cancel Buyer's order or any part thereof.

4. CREDIT – Vi-Lux approval of Buyer's credit is required prior to any shipment. If Buyer's credit is unsatisfactory to Vi-Lux at any time for any reason, Vi-Lux reserves the right to suspend further deliveries or to require payment in advance. All rebates for which Buyer becomes eligible are subject to V-Lux’s right of offset against outstanding amounts owed by Buyer.

5. TERMS OF PAYMENT – Payment terms shall be as stated on individual invoices to Buyer. For Buyers located in the United States, invoices are payable in US dollars only. For Buyers located in Canada, invoices are payable in Canadian dollars only. All payments shall be considered received by Vi-Lux on the day Vi-Lux receives credit in its bank account. 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 Vi-Lux determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding owed to Vi-Lux from Buyer shall at Vi-Lux’s option become immediately due and payable.

6. TAXES - All federal, state, provincial 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.

7. SECURITY INTEREST – If the sale of merchandise is made in a Canadian province other than Quebec, Vi-Lux reserves and Buyer grants to Vi-Lux 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 Vi-Lux.

If the sale of merchandise is made in Quebec, the Buyer hereby hypothecates in Vi-Lux's favour, without delivery, as a vendor’s hypothec (in accordance with Article 2954 of the Civil Code of Quebec), the merchandise identified in any order covered by these Terms and Conditions submitted by Buyer, 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.

If the sale of merchandise is made in the United States, Vi-Lux reserves and Buyer grants to Vi-Lux a purchase money security interest in all products sold and any receivables, cash or other proceeds from the resale thereof by Buyer to secure the full payment and performance by Buyer of its liabilities and obligations to Vi-Lux.
Buyer acknowledges that this or another document may be filed with the appropriate authorities as a financing statement or as evidence of a vendor’s hypothec and agrees to execute and deliver such documents as Vi-Lux may request in order to perfect its security interest or vendor’s hypothec, as applicable.

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 any other default within thirty days after being notified of such default by Vi-Lux; (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 Buyer in order to liquidate its assets or declare it bankrupt, which are not diligently contested by Buyer and are not dismissed or cancelled within twenty-one 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 days thereafter.

8. RISK OF LOSS; DELIVERY - All shipments of goods hereunder shall be F.O.B. Napanee, ON, unless sales terms have been negotiated on a prepaid freight basis for Buyer. 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 Vi-Lux to Buyer's carrier or Buyer’s ship-to location. 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, photos and signed delivery receipt noting such loss or damage. In no event shall Vi-Lux be liable for damage or loss to a shipment caused by any carrier.

9. WARRANTY/LIABILITY DISCLAIMER - Except as otherwise stated in the applicable written consumer warranties for PVC Exterior Trim or Door Components, the goods delivered hereunder are sold by Vi-Lux without any express guaranty and/or warranty, oral or written (whether or not such goods remain in the form in which they are originally delivered to Buyer or are fabricated by Buyer or any other party to produce any other finished product) and, TO THE EXTENT PERMITTED BY APPLICABLE PROVINCIAL OR STATE LAW, AND EXCEPT AS SET FORTH IN THE APPLICABLE WRITTEN WARRANTIES FOR ITS VINYL SIDING PRODUCTS, VI-LUX EXPRESSLY DISCLAIMS ALL GUARANTIES AND/OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Vi-Lux’s liability for any loss or damage arising out of or resulting from any breach or default by Vi-Lux in connection with the sale of goods hereunder shall not exceed the purchase price thereof, regardless of whether such liability arises in contract, tort (including without limitation negligence or strict liability), or otherwise, and in no event shall Vi-Lux be liable for indirect, special, incidental, or consequential damages of any kind. No representative of Vi-Lux, or any of Vi-Lux’s distributors or dealers, is authorized to modify this section or to issue any warranty regarding goods delivered hereunder on behalf of Vi-Lux. The applicable warranty information for PVC exterior trim and door components, can be found at Buyer agrees that any civil action against Vi-Lux relating to or arising out of the sale of goods hereunder shall be commenced within one year of the date the cause of action accrued; otherwise, it shall be barred.

• For returns due to quality issues, contact the Customer Services Department at 866-281-6743. 
• Returns due to Vi-Lux, Buyer, or carrier error can be coordinated through your Customer Service Department, who will obtain any required authorizations. 
• For all return requests, the following are required: an original Vi-Lux order number or invoice number, and digital photos of the product to be returned. 
• A copy of the return material authorization and a completed Bill of Lading must accompany all returns. 
• Material must be returned in original boxes, in “like new” condition and ready for re-sale. Only full, unopened boxes or units of currently produced material will be accepted. 
• Broken, damaged, obsolete, discontinued (upon receipt of communication), special orders, or products not ready for re-sale will not be credited. 
• Products may only be returned within 12 months of original Vi-Lux invoice date. 
• All returns, excluding quality claims and Vi-Lux or carrier errors, are subject to a 20% re-stocking charge and must be shipped back prepaid by Buyer. 
• Material must be returned to Vi-Lux’s Napanee, ON plant from which the material shipped. 
• Return Authorizations are valid for 45 days from the date of issue. Return Authorizations open for more than 45 days will be cancelled. 
• While returns are F.O.B. Napanee, ON, all freight for Buyer requested returns must be shipped prepaid, at Buyer’s expense. 
• Customer Service will notify Buyer of any discrepancy related to pending Return Material Authorization (RMA) credits. Buyer will have five business days from notification to request the return of any product sent back on an RMA that is not in re-sellable condition.

• Vi-Lux requires the use of one of its order processing tools to facilitate timely and efficient order entry. The available options are:  Email or fax.
• Orders must include the Vi-Lux product code. 
• Orders requiring a curtain-side / side-unload truck are unable to ship light. Ship date will be based upon the ability to find a geographical match. 
• Vi-Lux reserves the right to adjust shipping means based on order, weight, and carrier availability. 
• Either a revised purchase order or an e-mail is required for all changes. 
• Millwork orders submitted outside of our standard carton unit of measure - i.e., piece or box - will automatically be rounded up to the next carton quantity. 
• Requests for credits for damaged material must be accompanied by pictures. 
• Truckload exclusive orders must contain a full truckload of material at the time of submission. Any orders that are not full truckloads when placed will be designated as a pooling order and may be subject to pooling charges. 
• Millwork, door components and accessories will be shipped in full carton quantities only. Individual piece quantities are not available.
•Millwork flatbed shipments are shrouded and will not be tarped. If tarps are required, a $300 Tarp Fee will be applied. 
• Full truckload orders of PVC Trim products will be serviced directly from Vi-Lux’s Napanee, ON plant. 
• Millwork products are unable to be delivered to residential addresses. 
• For all sample orders, please contact Vi-Lux’s Customer Service Department.
• Buyer will receive an Advanced Shipping Notification upon shipment of the order on request. This document will show items that will backorder prior to delivery. Due to unknown conditions, certain products may backorder within the 48 hours after the Advanced Shipping Notification is sent. 
• All backorders will remain open in Vi-Lux’s system for future shipment.

12. 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. Written notice of any disputed invoices, including supporting documents, must be provided to the Vi-Lux Sales Services Department within 10 business days of the invoice date. Buyer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by Vi-Lux hereunder.

13. FORCE MAJEURE – Vi-Lux shall not be liable for delays or failure to perform hereunder for any cause beyond Vi-Lux’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.

14. FAIR LABOR STANDARDS ACT – Vi-Lux hereby certifies that any goods sold hereunder produced in the United States were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.

15. CHANGE IN TERMS AND CONDITIONS OF SALE - The terms and conditions contained or referenced herein constitute the entire agreement between Vi-Lux 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 Vi-Lux. 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.

16. GENERAL - This agreement shall not be assigned by Buyer without the prior written consent of Vi-Lux, 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. If Buyer is located Canada, 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. Vi-Lux and Buyer submit to the jurisdiction of the courts of the Province of Quebec for transactions occurring in that Province. For all other transactions, Vi-Lux and Buyer submit to the jurisdiction of the courts in the Province of Ontario. Buyer hereby consents to the jurisdiction of such courts.

If Buyer is located in the United States, this agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to its conflicts of law provisions. The courts located in Pennsylvania shall have exclusive jurisdiction of all matters relating to or arising out of any sale of goods by Vi-Lux to Buyer hereunder.  Buyer hereby consents to the jurisdiction of such courts.

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 this Agreement.