Terms and Conditions of Purchase

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 Wolseley Canada Inc. (“Wolseley”) unless accepted by it in writing signed by Wolseley. Notwithstanding any other provision of this Order, Wolseley expressly reserves the right to revoke this Order at any time prior to receipt of notice of acceptance by Seller. All terms and conditions contained in any prior proposal or subsequent 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 Wolseley, notwithstanding the Wolseley's act of accepting or paying for any delivery or similar act of Wolseley. 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 and each delivery shall be deemed to be only upon the terms and conditions contained in this Order.

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, as amended from time to time and the Controlled Products Act. Seller shall adhere to the Code of Conduct of Wolseley’s parent, Ferguson plc, which can be found at https://www.wolseleyinc.ca/products-code-of-conduct.html or has adopted 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 exclusive jurisdiction of the Ontario Courts. The parties expressly acknowledge 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, goods covered by this Order shall be shipped "FOB prepaid to destination". Title to said goods to pass to Wolseley only upon delivery to Wolseley's specified end destination regardless of FOB point. Delivery in advance of the specified Wolseley'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 Wolseley.

FORCE MAJEURE. Neither Seller or Wolseley 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.

DEFAULT. In the event that Wolseley incurs damages as a result of the Seller's delay in delivering goods and/or services 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. Wolseley 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 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 Wolseley may authorize in writing; and (b) upon such termination Wolseley 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 Wolseley for any excess costs for such similar supplies or services. As an alternate remedy, and in lieu of termination for default, Wolseley, 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. Wolseley 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 Wolseley in writing. If Seller does not comply with Wolseley's delivery schedule or performance schedule, Wolseley 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 Wolseley 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, Wolseley, in addition to any other rights which it may have under all applicable warranties or otherwise pursuant to applicable law, 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 Wolseley. Wolseley 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 negligence as amount to fraud or with respect to the Wolseley's rights under the "Warranty" clause.

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

PRICE. The Order price shall not be increased nor the terms hereof changed without the Wolseley's written consent. The Seller warrants that the prices of the goods and/or services 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 goods and/or services. 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, Wolseley 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.Wolseley

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 Wolseley with any amended, altered or revised information on a timely basis or when requested by Wolseley. 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 Wolseley 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 Wolseley'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. Wolseley shall be reimbursed in full for all merchandise returned. In addition thereto, Wolseley 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 Wolseley's standard routing and shipping instructions issued by the Wolseley. If such instructions are not attached hereto or have not been previously received, instructions must be requested from the Wolseley 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 Wolseley'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. 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.

AUDIT. Seller shall maintain records in the ordinary course of business in accordance with generally acceptable accounting principles to accurately capture and reflect purchase and sale transaction arising out of any Order. Seller will allow Wolseley, or its agent, to audit such records or its facilities to evaluate compliance with any Order. Such audits shall be at reasonable time and with reasonable notice.

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 Wolseley. 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 Wolseley 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 Wolseley and its parent and 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 Wolseley 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 this Order by the Seller, including without limitation breach of warranty or product liability, except that Seller's obligation herein to indemnify Wolseley shall not apply to any liabilities arising exclusively from Wolseley's sole negligence.

WAIVER. Wolseley's failure to insist upon strict compliance shall not be deemed to be a waiver of any right granted Wolseley herein. Wolseley shall not be deemed to waive any such right unless such waiver is in writing signed by the Wolseley'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 goods furnished pursuant to this Order and that they are being delivered free and clear of any lien or other encumbrance. 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 Wolseley's intended use and that such items shall be free from defects in design, material and workmanship, and any and all services will be executed in a professional, good and workmanlike manner and in conformance with the highest industry standard(collectively, the "Seller's Warranty"). Seller's Warranty shall remain in effect for a minimum period of one (1) year after acceptance of the items by the Wolseley, or for such longer period of time as the goods and/or services are otherwise warranted by Seller or any applicable manufacturer. Acceptance of the goods and/or services by Wolseley shall not 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, Wolseley 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 Wolseley, its customers and their successors in title and shall not be deemed to be exclusive, but shall be in addition to Wolseley's other rights under the terms of this Order or at law or equity.

TERMINATION BY WOLSELEY. Wolseley shall have the right to terminate or suspend this Order in whole or in part at any time, and from time to time, by 2 days prior written notice, 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 Wolseley'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 Wolseley, 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 for the duration of Seller’s Warranty, 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 as an additional insured.

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 Wolseley.