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STANDARD TERMS AND CONDITIONS OF SALE
Roofmart group of companies*, their branches and all of their affiliates and related entities doing business as ROOFMART or ROOF CENTRE (“Roofmart or “Seller”)
* Roofmart Ontario Inc. in Ontario, Les Entreprises Roofmart Ltee. in Quebec, Les Entreprises Roofmart (Quebec) Ltee. in Quebec, Roofmart Alberta Inc. in Alberta, Roofmart Pacific Ltd. in British Columbia, Roofmart Prairies Ltd. in Saskatchewan and Manitoba, and Pacific Roof Centre Inc. in British Columbia.
These terms and conditions of sale (“Terms and Conditions of Sale”) bind Roofmart selling goods in Canada and its customer (“Buyer”) regarding the sale by and purchase from Seller of products (“Goods”) in Canada. By accepting delivery of Goods from Seller, Buyer agrees to be bound by these Terms and Conditions of Sale.
- Entire Agreement. These Terms and Conditions of Sale including the following terms and conditions, together with any specifications attached hereto, constitute the entire and final agreement between Buyer and Seller with regard to the subject matter hereof. If any provision on the face of these Terms and Conditions of Sale (including any specification referred to) is inconsistent with any of the terms and conditions set forth herein, the provisions on the face of these Terms and Conditions of Sale shall govern.
- Price. Prices in effect at time of shipment of Goods or performance of services shall prevail. All prices quoted by Seller are subject to change without notice. Prices do not include any present or future taxes, sales, goods and services, customs, duties, transportation and delivery, insurance, use, excise, value added or similar taxes and where applicable, such items shall be billed as a separated item and paid by Buyer. Buyer shall pay such amounts in addition to Seller’s prices. Title and risk of loss shall pass from Seller to Buyer once the Goods are loaded on the first carrier at Seller’s facility in circumstances where Buyer has arranged freight, or once delivered by Seller to Buyer’s delivery destination. Buyer hereby grants Seller a security interest in the Goods and all insurance or other proceeds of disposition thereof until payment in full of that total purchase price, together with any applicable interest and other charges as provided for herein have been fully satisfied, as set out in Section 6 of these Terms and Conditions of Sale.
- Payment Terms. Seller shall be paid for the Goods in accordance with the terms agreed upon between Seller and Buyer. In case of any default in payment hereunder or under any other contract with Seller, all amounts owing under this and other contracts by Buyer to Seller shall become due, notwithstanding the terms of sale. Buyer shall be liable for all expenses attendant to the collection of past due amounts, including attorneys’ fees and costs. Seller shall have the right to set off any amounts owing from Buyer against any amounts payable to Buyer. On overdue account, Buyer shall pay to Seller, on demand, interest at the rate of eighteen percent (18%) per annum, calculated and payable monthly, on the last day of each month, not in advance. However, if the foregoing charges exceed that rate which may be lawfully charged under applicable law, then such charges will be calculated so as to not exceed the highest lawful rate.
- Delivery. Delivery dates given in advance of actual shipment are estimates and shall not be deemed to represent fixed or guaranteed delivery dates, and are subject to the availability of the Goods, freight space and prompt receipt of all necessary documentation regarding the order, if applicable. Seller shall not be liable or responsible for any loss or damage resulting from delay in delivery and Seller will not accept chargebacks for delays in shipment. Partial shipments are allowed. Each delivery or shipment shall be considered a separate sale.
- Security Interest / Hypothecated Goods. Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance or performance from Buyer without liability to Buyer as provided under this section. Buyer, in order to provide security for the payment of the full price of Goods furnished hereunder (the “Hypothecated Goods”), hypothecates and charges in favour of Seller and grants to Seller a security interest for an amount equal to the purchase price of the Goods furnished hereunder and the proceeds thereof, plus an additional sum equal to eighteen percent 18% of the amount of the hypothec for purposes of guaranteeing the payment of interest and incidental charges that are not already guaranteed by the amount of the hypothec, with interest commencing from the date hereof at a rate of eighteen 18% percent per year. The hypothec is granted to secure payment of the balance of the purchase price of the Hypothecated Goods and all other obligations of Buyer to Seller hereunder and pursuant to the order and the price list provided by Seller. Buyer shall be in default under these Terms and Conditions of sale, and the security interest 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 ten (10) days after being notified of such default by Seller; (b) Buyer threatens, appears to or ceases to carry on its business or substantially changes the nature of its business, all as determined by Seller in its sole discretion; (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, (e) a prior notice is given by a creditor purporting to hold or holding a prior claim of its intention to exercise its purported or prior claim or any other security interest, or if such right or security interest is exercised or if a secured creditor takes possession or appoints a receiver with respect to any part of the Goods sold; (f) an order of execution is filed against the Buyer or a seizure is brought against the Goods sold and should it not be quashed within ten (10) days thereafter; or g) the credit of Buyer or of any person or entity providing credit support for Buyer’s obligation to Seller is jeopardized. Buyer agrees to execute any documents and to furnish any information necessary to perfect or publish the foregoing with the appropriate authorities. Seller reserves its right to suspend its performance until such payment or adequate assurance of performance has been received. Seller’s rights hereunder are in addition to and not in limitation of any other rights Seller may have at law, including Seller’s lien rights with respect to the land or buildings into which the Goods have been incorporated.
- Warranties –Products manufactured by third parties. Seller makes no warranty and any and all implied warranties of merchantability or fitness whether statutory or otherwise in respect of Goods sold by Seller and manufactured by third parties are hereby excluded. Goods manufactured by third parties are sold only with such warranties as may be extended by the manufacturer of the product. Services performed by third parties are subject only to those warranties extended by third parties. Buyer is responsible for installation and use in accordance with manufacturer’s instructions. Seller specifically does not adopt or assume any responsibility for the enforcement of the warranties of third party manufacturers. Buyer acknowledges that it has inspected the Goods and that it is buying such Goods in reliance on the manufacturer’s warranty only. Seller’s personnel are not authorized to alter this policy. The parties hereto agree that domestic sale of goods law shall apply to this order and not the United Nations Convention on Contract for the International Sale of Goods, and any local enactment thereof (including but not limited to the International Sale of Goods Contracts Convention Act). No separate of extended warranty shall apply to defective Goods or to any parts or parts thereof manufactured by third parties.
- Warranties – Products manufactured by Seller. Seller warrants to Buyer only, that all Goods sold and manufactured by Seller hereunder are free, under normal use and maintenance, from defects in material and workmanship. If within the applicable warranty period as determined from time to time by Seller, Seller receives from Buyer written notice of any alleged defect in the Goods, and when Seller acknowledges its sole discretion that such defect is due to faulty material or workmanship at the time of manufacture (Buyer having provided Seller a reasonable opportunity to perform appropriate tests thereon), Seller shall, at its sole option and expense, either repair or replace the defective Goods. Seller shall have the right to require Buyer to deliver the Goods for such repair or replacement to a designated service center. Any Goods that are repaired or replaced by Seller are warranted to be free from defects in material or workmanship at the time of manufacture for the time period originally applicable to the Goods. No separate or extended warranty shall apply to the repaired Goods or to any part or parts thereof.
- Limitation of Liability. THE FOREGOING IS THE SOLE WARRANTY OF THE SELLER IN CONNECTION WITH THE GOODS AND IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS (EXPRESS AND IMPLIED AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OTHER WARRANTIES OR CONDITIONS EXPRESSED OR IMPLIED ARE GIVEN. As a service to Buyer, Seller may have provided advice or recommendations with respect to the Goods for Buyer’s intended use, which advice or recommendations were provided as a guide only for Buyer’s verification, and the Seller does not assume any risk or liability based on or relating to Buyer’s use of such advice/recommendations. Seller’s liability on any claims for loss or damage arising out of this contract or the performance or breach or connected with the supplying of any Goods or services hereunder, or the sale, resale, operation or use of such Goods, whether based civil liability (whether contractual or extra-contractual), warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such Goods or parts thereof involved in the claim, REGARDLESS OF CAUSE OR FAULT. THIS LIMITATION OF LIABILITY REFLECTS A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS BETWEEN SELLER AND BUYER AND CONSTITUTES THE BASIS FOR THE PARTIES’ BARGAIN WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO THE PRICE OR TERMS OF THIS CONTRACT. Seller shall not, under any circumstances, be liable for any labour charges without its prior written consent. SELLER SHALL NOT IN ANY EVENT BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds for INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES, including but not limited to, loss of profits or revenue, loss of use of the Goods or any associated products, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of customers of Buyers for such damage. If Seller furnishes Buyer with advice or other assistance which concern any Goods supplied hereunder, or any system or equipment in which any such Goods may be installed, and which is not required pursuant to this contract, the furnishing of such advice or assistance will not subject Seller to any liability, whether based on contract, warranty, tort (including negligence) or other grounds. Buyer shall assume all such responsibility, risk and liability, whether or not the Goods were selected or used in accordance with the Seller’s recommendations, assistance or instructions, and Buyer shall indemnify and save harmless Seller from and against all liability, loss, costs, damages, claims or expenses in respect thereof.
- Returned Goods by Buyer. Seller reserves the right to refuse to accept Goods returned without its prior authorization in writing and Goods will not be accepted unless it is in the original package and package quantity. All authorized returns must be made within sixty (60) days of the date of invoice, and must contain the invoice number and the date of purchase. All authorized returns to Seller’s warehouses must be freight prepaid and may be subject to a fifteen percent (15%) return charge, or a minimum of fifty dollars ($50.00) whichever is greater, plus reconditioning charges, restocking charges or repackaging charges. No return charge is applicable where the return is necessitated through an administrative error on the part of Seller or if the return is for repair or replacement pursuant to the warranty of Seller set out in these Terms and Conditions of Sale. All shortages and/or overages and/or damaged Goods must be identified within 24 hours of date of shipment. There are no returns for special order items.
- Assignment. These Terms and Conditions of Sale shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. Buyer shall not assign any or all of its duties hereunder without the prior written consent of Seller, which may be withheld for any reason in Seller’s sole discretion. No warranty shall be assignable under any circumstances. No waiver of any provision of these Terms and Conditions of Sale by an authorized corporate officer of Seller will be valid unless the same is in writing and signer by such officer.
- Force Majeure. Seller shall not be liable for any loss or damage due to delayed delivery or performance or non-delivery, in whole or in part, if such delayed delivery or performance or non-delivery is caused by i) a cause beyond its reasonable control; or ii) an act of God, act or omission of Buyer, act of civil or military authority, governmental priority or other allocation or control, embargoes, natural catastrophes, unusual severe weather, floods, fire, strike, or other labour difficulty, labour strikes or disputes, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer, delay in transportation; or iii) any other commercial impracticability, including failure of computer or telecommunications systems to operate properly, destruction or loss of electronic records or data, plant shutdowns, unavailability of materials or components, unavailability of or delays in transportation, insufficient production capacity, governmental requests, laws, regulations, orders or actions. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay. Additional charges for local delivery may also apply.
- Applicable Law; Severability; Amendment. These Terms and Conditions of Sale shall be governed by the laws of the Province of Ontario, Canada, without reference to the choice of law, conflicts of law, or principles of any province or country which might otherwise by applied. The parties hereto agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to these Terms and Conditions of Sale and is strictly excluded. If any provision of these Terms and Conditions of Sale is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties shall use their best efforts to substitute a valid, legal and enforceable provision, which, insofar as practical, implements the purpose of these Terms and Conditions of Sale. Roofmart reserves the right to unilaterally modify or amend any portion of these Terms and Conditions of Sale at any time without prior notice effective immediately upon posting at the Roofmart website (www.roofmart.ca).
- Language of Content. Les parties au présent contrat ont exigé que le présent contrat et les documents qui s’y rattachent soient rédigés en anglais. The parties hereto have required that the present contract and the related documents be drawn up in English.