TERMS AND CONDITIONS. No terms and conditions other than the terms and conditions set forth in this Order, including any terms and conditions in any document attached to or incorporated by reference, shall be binding upon Buyer unless accepted by it in writing signed by the Buyer’s Purchasing Agent or General Manager. Notwithstanding any other provision of this Order, Buyer reserves expressly the right to revoke this Order at any time prior to receipt of notice of acceptance by Seller. Acceptance is limited to the terms stated herein. All terms and conditions contained in any prior proposal or acknowledgment of this Order which are different from or in addition to the terms and conditions of this Order are hereby rejected and shall not be binding on Buyer, whether or not they would materially alter this Order, and Buyer hereby objects thereto. Seller will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or service covered by this Order is shipped or an invoice is presented in connection with the said goods and/or services.

COMPLIANCE WITH LAWS. Seller warrants that all goods provided hereunder have been produced and all services performed are in compliance with applicable federal, provincial and local laws, ordinances, codes, rules, regulations or standards, including without limitation, those pertaining to the manufacture, labeling, invoicing and sale of such goods or services, environmental protection, immigration, employment and occupational health and safety, including Transport Canada’s Transportation of Dangerous Goods Regulations, Clear Language Edition (“CLR”), as amended from time to time and the Controlled Products Act.  Seller shall adhere to Wolseley’s Code of Conduct which can be found by clicking here or shall adopt similar ethical standards.

GOVERNING LAW. This Order shall be construed and governed by the laws of the Province of Ontario and the laws of Canada to the extent applicable and the parties attorn to the jurisdiction of the Ontario Courts. The parties acknowledge expressly requiring this Order and all related documents to be drawn up in the English language. Les parties ont expressément demandé que la présente Convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

TRANSPORTATION. Unless otherwise stipulated on the face of this Order or as modified by routing letter from Buyer’s Purchasing Agent, goods covered by this Order shall be shipped “FOB prepaid to destination”. Title to said goods to pass to Buyer only upon delivery to Buyer’s specified end destination regardless of FOB point. Delivery in advance of the specified Buyer’s shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. Transportation charges on goods delivered FOB destination must be prepaid. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Unauthorized transportation charges not prepaid will be offset by Buyer.

FORCE MAJEURE. Neither Seller or Buyer shall be liable in the performance of its obligations under this Order to the extent that performance of such is delayed or prevented due to causes beyond the reasonable control of said party, including, but not limited to, acts of God, war, revolution, civil commotion, blockade or embargo, any law, order, regulation, ordinance, or requirement of any government or its representative or legal body having jurisdiction, fires, floods, earthquake, elements of nature, pandemics, explosion, power failure, terrorism, acts of public enemies, or labour unrest such as strikes, slowdowns, picketing or boycotts, and other causes beyond the reasonable control of either party (“Force Majeure”).

DEFAULT. In the sole event that the Buyer incurs damages as a result of the Seller’s delay in delivering goods subject to this Order, Seller shall be liable for such damages notwithstanding that such are due to causes beyond Seller’s control or result without fault or negligence of Seller. Buyer may by written notice of default to Seller (a) terminate the whole or any part of this Order in any one of the following circumstances: (i) if Seller fails to perform within the time specified herein or any extension thereof; or (ii) if Seller fails to perform any of the other provisions of this Order, or so fails to make progress as to endanger performance of this Order in accordance with its terms; or (iii) if the Seller shall become insolvent or make a general assignment for the benefit of creditors or if a petition under any bankruptcy act or similar statute is filed by or against the Seller, and in any of these circumstances does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing; and (b) upon such termination Buyer may procure, upon such terms as it shall deem appropriate, supplies or services similar to those so terminated, in which case Seller shall continue performance of this Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar supplies or services. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect (a) to extend the delivery schedule and/or (b) to waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price shall be granted. Buyer shall have the right at any time to require assurance from Seller. In the event Seller for any reason anticipates difficulty in complying with the required delivery date or performance schedule, or in meeting any of the other requirements of this Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with Buyer’s delivery schedule or performance schedule, Buyer may require delivery by fastest means and charges resulting from the premium transportation must be fully prepaid and absorbed by the Seller. The rights and remedies of the Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Order.

REJECTIONS. If any of the goods and/or services furnished hereunder are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Buyer, in addition to any other rights which it may have under all applicable warranties or otherwise, may at its option correct or have corrected the nonconformity at Seller’s expense, or reject and return such goods and/or discontinue such services at Seller’s expense. Such goods and/or services shall not be replaced or continued without written authorization from Buyer. Buyer may accept, without prejudice, a portion of any shipment, and, at its option, have Seller repair or replace any non-conforming portion of the shipment, at Seller’s expense. Items rejected shall be removed promptly by the Seller at its expense and at its risk. Final acceptance shall not be conclusive with respect to latent defects, fraud or such gross mistakes as amount to fraud or with respect to the Buyer’s rights under the “Warranty” clause.

SET-OFF. Buyer shall be entitled at all times to set-off any amount owing at any time from Seller to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this Order.

TERMS. The Order price shall not be increased nor the terms hereof changed without the Buyer’s written consent. The Seller warrants that the prices of the items covered by this Order are not in excess of the Seller’s lowest lawful prices in effect on the date of this Order for comparable quantities of similar items. If cash discounts for early payment are offered by Seller, the period of time agreed upon as constituting “early payment” shall begin with the later of the invoice date or receipt of merchandise. Unless freight or other charges are itemized, the discount will be taken on the full amount of the invoice.

PAYMENT. Upon submission of proper invoices, Buyer shall pay the Order price set forth herein for material and supplies delivered and accepted or services rendered and accepted; however, payment may be withheld or portions thereof deducted or set-offs made against Seller if Seller is not performing work in accordance with the provisions of this Order. There will be no minimum charges honored unless specifically agreed to prior to shipment. Shipments consigned directly to Buyer’s customers that are shipped after the twentieth (20th) shall be considered as invoiced the following month.

HAZARDOUS SUBSTANCES.  If any of the items ordered herein contain “hazardous substances” as defined by any applicable Federal, Provincial or local law, rule or regulation, Seller shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets (“MSDS”) in approved form , in English and in French. Seller agrees to maintain such information current and shall provide Buyer with any amended, altered or revised information on a timely basis or when requested by the Buyer. When this Order or the specifications referred to herein, requires documentation or certification, this requirement is a material requirement of this Order; Seller’s failure to provide such information prior to or at the time of delivery may result in withholding of payment until such is provided.

DELIVERY SCHEDULE. Time is of the essence in the fulfillment of this Order. This Order is subject to cancellation if not shipped at the specified time. The Buyer reserves the right to refuse deliveries made in advance of the delivery schedule. Merchandise shipped after the time specified may be returned at the Seller’s expense for full credit. Retention of all or any part of such merchandise shall not be considered acceptance of same. Acceptance of such merchandise shall not be deemed a waiver of the Buyer’s right to hold the Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of the Seller’s obligation to make future deliveries in accordance with the delivery schedule. Buyer shall be reimbursed in full for all merchandise returned. In addition thereto, Buyer shall have the privilege, if shipment is not made on time, to purchase similar merchandise in the open market in such quantities as they may find necessary not exceeding the amount called for in this Order and hold Seller responsible for the difference, if any, between the price so paid and the Order price.

SHIPMENT. All material shall be properly packed for shipment. The Seller shall comply with the Buyer’s standard routing and shipping instructions issued by the Buyer. If such instructions are not attached hereto or have not been previously received, instructions must be requested from the Buyer immediately. No additional charge will be allowed for packing, crating, freight, express or cartage unless specified on the face of the Order. Any loss or damage, whenever occurring, which results from Seller’s improper packaging or crating shall be borne by Seller. All items shall be properly identified with Buyer’s Order number releasing shipments against this Order and the Order item number or other identification number shown.

Shipments containing dangerous goods (“Dangerous Goods”) are subject to regulation under the applicable provisions of Transport Canada’s Transportation of Dangerous Goods Regulations, Clear Language Edition (“TDG”), as amended from time to time. Shipments of Dangerous Goods also may be subject to other agreements, directives, laws and regulations at the federal, provincial and territorial levels of government in Canada.

The Seller is solely responsible for ensuring that all shipments containing Dangerous are marked, labelled and accompanied with required documentation, as required under the TDG Regulations and all other applicable governmental agreements, directives, laws and regulations. As required by Part 12.1 of the TDG, the Seller represents that its shipments containing Dangerous Goods are marked in accordance with Part 4 (Dangerous Goods Safety Marks) of the TDG and documented in accordance with Part 3 (Documentation) of the TDG. Seller is solely responsible for ensuring that all Limited Quantities and Consumer Commodities are marked, labeled and accompanied with required documentation in accordance with the TDG and all other applicable governmental agreements, directives, laws and regulations. As required by Part 12.1 of the TDG, Seller represents that its Limited Quantities and Consumer Commodities are marked in accordance with Part 4 (Dangerous Goods Safety Marks) of the TDG and documented in accordance with Part 3 (Documentation) of the TDG. Seller is solely responsible for providing all documentation in required languages.

CERTIFICATES OF ORIGIN AND CUSTOMS DOCUMENTATION. Seller accepts all responsibility for the information on the Certificate of Origin, letter or affidavits. By accepting this Purchase Order, seller accepts full responsibility for the completeness and accuracy of the corresponding Certificate of Origin and all other customs documentation provided to Buyer. Seller accepts any liabilities resulting from inaccurate data on these documents or failure to comply with Certificate of Origin requirements.

PATENT AND COPYRIGHT INDEMNITY. Seller represents and warrants that neither the merchandise nor the sale thereof covered by this Order will infringe upon or violate any trademarks, patents, copyright or other legal rights of third parties. Seller agrees to indemnify and save Buyer harmless from and against any and all claims, liability, loss, costs, attorneys’ fees, expenses and damages due to or arising from any such alleged infringement or violation.

INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to indemnify, save harmless, and defend Buyer and its affiliated companies, their customers, directors, officers, employees and agents, from and against any loss, liability, cost, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, all judgments rendered against, and all fines and penalties imposed upon Buyer and any reasonable legal fees and any other cost of litigation (hereinafter collectively referred to as “liabilities”) arising out of injuries to persons, including death, or damage to property, caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance and prosecution of the work herein contracted for, including without limitation breach of warranty or product liability except that Seller’s obligation herein to indemnify Buyer shall not apply to any liabilities arising from Buyer’s sole negligence.

Seller further agrees to indemnify, defend, and hold harmless Buyer, its parent corporation, and its affiliated companies, their officers, directors, employees, agents, and their successors and assigns, from all claims, demands, expenses (including reasonable attorneys’ and consultants’ fees), liabilities, causes of action, enforcement procedures, and suits of any kind or nature (hereinafter “Claims”), of which Buyer may hereinafter incur as a result of Sellers breach of this Agreement or its non-compliance with the TDG Regulations or other applicable governmental agreements, directives, laws and regulations, whether such action is brought by a governmental agency or other person or entity, except to the extent that such Claims result from Buyers negligence or willful misconduct or that of its employees, subcontractors or agents.

WAIVER. The Buyer’s failure to insist upon strict compliance shall not be deemed to be a waiver of any right granted Buyer herein. Buyer shall not be deemed to waive any such right unless such waiver is in writing signed by the Buyer’s General Manager; such waiver shall not constitute a waiver of any other default under this Order.

TAXES. Unless prohibited by law, the Seller shall pay all federal, provincial, or local tax, transportation tax, or other tax which is required to be imposed upon the items ordered hereunder, or by reason of their sale or delivery; the Order price shall be deemed to include such taxes.

WARRANTY. Seller warrants that it has clear title to all items furnished subject hereto and that they are being delivered free and clear of any encumbrances. The Seller further warrants that all such items shall conform to the Seller’s specifications, the requirements of this Order and approved sample or samples, if any, and further, that such shall be merchantable and fit for the Buyer’s or its customer’s intended use and that such items shall be free from defects in design, material and workmanship (collectively, the “Seller’s Warranty”). Seller’s Warranty shall remain in effect for a one (1) year period after acceptance of the items by the Buyer’s customers, or for such longer period of time as the item is normally warranted. Neither approval by the Buyer of the Seller’s design nor acceptance of the goods shall release or discharge Seller from liability for damages resulting from a breach of Seller’s Warranty.

If any defect, failure or other non-conformity appears, Buyer shall have the right to take the following actions: (1) retain such defective items and an equitable adjustment will be made in the Order price for such defective items; (2) require Seller to repair or replace such defective items, at the Seller’s sole expense, including all shipping, transportation, and installation costs; or (3) correct or replace such defective items with similar items and recover the total cost thereof from the Seller. The aforesaid warranties shall survive acceptance and payment and shall run to Buyer, its customers and their successors in title and shall not be deemed to be exclusive, but shall be in addition to Buyer’s other rights under the terms of this Order or at law or equity.

TERMINATION BY BUYER. Buyer shall have the right for and at its convenience to terminate or suspend this Order in whole or in part at any time, and from time to time, by written or telegraphic notice effective upon receipt by Seller, even though Seller is not in breach of any obligation hereunder. Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to this Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the items for which this Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the price specified herein for such items. In no event shall the Seller be entitled to recover incidental, special or consequential damages. Seller shall advise the Buyer, in writing, of Seller’s claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.

INSURANCE: Seller shall obtain and maintain commercial general liability insurance with a minimum coverage of $2,000,000 per occurrence, which can be met through an umbrella or standard policy or any combination thereof. The insurance shall be evidenced by a Certificate of Insurance naming Wolseley Canada Inc. as more properly identified on the face of this Order as an “Additional Insured” under its Vendor Broad Form endorsement.

ENTIRE AGREEMENT. This Order constitutes the entire agreement between the parties and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated in this Order. The terms and conditions contained in the Order may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Buyer’s Purchasing Agent or General Manager. Each delivery shall be deemed to be only upon the terms and conditions contained in this Order, which shall supersede all inconsistent provisions included in Seller’s proposal and in any subsequent acknowledgment by Seller, notwithstanding the Buyer’s act of accepting or paying for any delivery or similar act of the Buyer.

October 2013