Terms and Conditions of Sale – Gypsum – Canada
- SALES POLICY: Gypsum products will be sold in such areas at such prices and to such customers as CertainTeed Gypsum Canada, Inc. (CertainTeed) shall specify from time to time in Area Price Bulletins. Notice of changes in policy or price will be given at CertainTeed’s discretion. All orders are subject to acceptance by CertainTeed and are not binding on CertainTeed until and unless so accepted.
- ORDERS The receipt by CertainTeed of a purchase order in any form, title or name, (a "purchase order") from the Purchaser shall be deemed to be Purchaser's acknowledgement and acceptance of the Terms and Conditions referenced herein (the “Terms and Conditions”). All other terms or conditions contained in the Purchaser’s form of purchase order shall not apply to any agreement between CertainTeed and Purchaser unless otherwise agreed to in writing by CertainTeed. References to “purchase order” herein shall mean any document other than the Terms and Conditions negotiated or executed by CertainTeed and Purchaser (collectively, the “parties”) for the purchase and sale of products or services.
- TERMS OF PAYMENT: Contact CertainTeed’s Credit Department. ALL COMMUNICATIONS REGARDING BILLING DISPUTES AND ALL PAYMENTS OF ANY DISPUTED OR DELINQUENT AMOUNT ALSO MUST BE SENT TO CERTAINTEED’S CREDIT DEPARTMENT. ALL REBATES FOR WHICH PURCHASER BECOMES ELIGIBLE ARE SUBJECT TO CERTAINTEED'S RIGHT OF OFFSET AGAINST OUTSTANDING AMOUNTS OWED BY PURCHASER.
- DELIVERY: Prices are F.O.B. customer warehouse. Freight charges will be prepaid for customer’s account for prepaid shipments. CertainTeed will make every effort to deliver orders at the time requested; however, no delivery delay will support a charge back, set off or claim for direct, indirect, incidental or consequential damages of any type.
- TITLE AND RISK OF LOSS: Title and risk of loss passes to the Purchaser upon delivery of the products by CertainTeed to the carrier at the shipping point.
- SECURITY INTEREST: If the sale of merchandise is made in a province other than Quebec, CertainTeed reserves and Purchaser 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 Purchaser of its liabilities and obligations to CertainTeed.
If the sale of merchandise is made in Quebec, the Purchaser 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 Purchaser’s obligations under these Terms and Conditions, including the payment of any amount due under these Terms and Conditions.
The Purchaser shall be in default under these Terms and Conditions, and the security interest/hypothec created hereunder shall become enforceable if: (a) Purchaser 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) Purchaser ceases to carry on its business or substantially changes the nature of its business; (c) Purchaser 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 Purchaser in order to liquidate its assets or declare it bankrupt, which are not diligently contested by the Purchaser 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.
Purchaser 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.
- TRANSPORTATION CHARGES/TYPE OF SHIPMENT: Contact CertainTeed’s Transportation Department.
- RETURN POLICY: Products returned to a plant will not be accepted unless approval is given in advance by a CertainTeed Regional Sales Manager (through Product Manager or Plant Manager). Any defective product will be replaced with comparable replacement product or a refund will be given in the amount of the purchase price of original invoice (at CertainTeed’s option). Non-defective returns may be subject to a reconditioning/restocking fee of 20% of the invoice price of the products returned.
- PRICE DECREASE: Upon publication of a price decrease, all unshipped orders will be billed at the new and lower prices. Unless otherwise notified or agreed, inventory adjustments will not be allowed.
- PRICE INCREASE: In the event of a price increase, all unshipped orders accepted by CertainTeed prior to the effective date of the price increase will be invoiced at the increased prices in effect at the time of shipment unless otherwise notified or agreed.
- PROTECTION OF SPECIFIC JOBS: Unless otherwise notified or agreed, no price protection will be granted on specific jobs, except that shipments for construction on Federal Government owned property financed with Federal funds may be made at the price that was in effect on the date contract was awarded to the general contractor, regardless of the date of shipment.
- WARRANTIES: PRODUCTS ARE WARRANTED AGAINST DEFECTS IN MANUFACTURE FOR ONE YEAR. THIS WARRANTY SHALL BE VOID IF THE PURCHASER FAILS TO NOTIFY CERTAINTEED IN WRITING OF ANY CLAIM UNDER THIS WARRANTY IN WRITING WITHIN TEN (10) BUSINESS DAYS OF DISCOVERY OF ANY DEFECT OR NON-CONFORMANCE. THIS WARRANTY CONSTITUTES PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS IN RESPECT OF DEFECTIVE OR NON-CONFORMING PRODUCTS AND, TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS RELATING TO THE PRODUCTS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY SUCH WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION IS HEREBY EXCLUDED.
- LIMITATION OF LIABILITY: THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF CERTAINTEED, ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES AND AGENTS (HEREINAFTER, THE “GROUP”) UNDER OR FOR BREACH OF THESE TERMS AND CONDITIONS FOR DIRECT COSTS, LOSSES OR DAMAGES, IF ANY, FROM ALL CLAIMS, ACTIONS OR SUITS, HOWSOEVER CAUSED OR ARISING RELATING TO PRODUCTS OR SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS, SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY PURCHASER TO CERTAINTEED IN RESPECT OF THE PARTICULAR PRODUCTS OR SERVICES PROVIDED UNDER THESE SPECIFIC TERMS AND CONDITIONS. THE TOTAL CUMULATIVE COLLECTION LIABILITY OF THE GROUP FOR LIABILITY FOR WARRANTY CLAIMS, AND THE SOLE REMEDY AVAILABLE TO PURCHASER FOR ANY WARRANTY CLAIMS, SHALL BE LIMITED TO THE REPAIR OR FURNISHING OF REPLACEMENT PRODUCTS FOR MATERIALS FOUND TO BE DEFECTIVE. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT RESTRICTION NEGLIGENCE) OR OTHERWISE SHALL THE GROUP OR ANY MEMBERS OR MEMBER THEREOF, BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR FOR OTHER PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING THE FOREGOING, CERTAINTEED SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE FOR ANY labour COSTS OR CHARGES ASSOCIATED WITH THE REMOVAL OR REPLACEMENT OF DEFECTIVE PRODUCTS.
- CLAIMS: In case of warranty claims against CertainTeed for defect in manufacture, written notice of the basis for the claim and sample of product illustrating such defect must be submitted to CertainTeed. CertainTeed shall have 60 days from date of receipt of such notice to inspect and dispose of defective material if such claim is allowed. Under no circumstances are products to be returned to CertainTeed unless the Purchaser has received CertainTeed’s written instructions to do so. The Purchaser shall have no right to deduct the amount of any claim from CertainTeed’s invoice until the claim is allowed by CertainTeed or adjudicated by proper authority. Unless otherwise agreed, all claims for loss or damage to products in transit must be filed with the carrier by the Purchaser. CertainTeed will give all reasonable assistance to the Purchaser in collecting loss or damage claims from carriers by furnishing duplicate invoice, affidavits showing count when loaded, method of loading, etc. Purchaser should in all cases immediately report loss and/or damages to carrier and request inspection in case of damage. On loss claims, Purchaser should secure car or truck seal numbers and a signed exception report from carrier.
- FORCE MAJEURE: CertainTeed will not be liable for any loss or damage for its failure to ship any order in accordance with the terms of the order where such failure is caused by any requirement of a governmental agency or authority, shortage of raw material, strikes or other labour trouble, fire, riots, wars, acts of God or other causes beyond the control of CertainTeed.
- TAX: An amount equal to any tax or other governmental charge upon the production, sale, occupation of selling, shipment or use of material which is now or may be hereafter imposed by Federal, Provincial, Municipal, or any other governmental authorities upon either the Purchaser or CertainTeed which CertainTeed is obliged to pay or collect shall be added to the price and shall be paid by the Purchaser.
- COMPLIANCE: CertainTeed certifies that these products were produced in compliance with all requirements of applicable federal and provincial labour laws.
- 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 Purchaser submit to the jurisdiction of the courts of the Province of Quebec for transactions occurring in that Province. For all other transactions, CertainTeed and Purchaser 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.
- ATTORNEYS' FEES AND COSTS OF ENFORCEMENT: CertainTeed and Purchaser agree that should it become necessary for any party hereto to employ an attorney to enforce any of such party’s rights hereunder against the other party hereto, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to reimbursement from the non-prevailing party of all costs and expenses, including but not limited to reasonable attorneys’ fees, costs of arbitration and court costs incurred, including fees and costs incurred in any bankruptcy case, matter or proceeding or any appeal taken in any state or provincial court or any other tribunal.
- ENTIRE AGREEMENT These Terms and Conditions represent the entire agreement between the parties with respect to the subject matter hereof. This acceptance constitutes a complete and binding contract which cannot be modified or cancelled without written consent of both parties.
- 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.