1. Les Bâtiments Metbec inc (“Seller” or “Manufacturer”) offers the following terms and conditions (“T&C”) applicable to this purchase order (“PO”) for Seller’s metal products, goods and/or materials (sometimes referred to as “Metal Building System”). These GTC shall apply without exception to this PO and to any sale made by Seller to the customer/purchaser named herein (“Buyer”). The parties expressly agree that this PO and all related documents shall be drawn up in the English language only. The parties expressly agree that this PO and all related documents shall be drawn up in the English language only. By signing and/or accepting this PO, electronic or otherwise, Buyer unconditionally and irrevocably accepts these GTC, which may not be modified or amended without the express written consent of Seller’s President or Executive Vice President. The terms and conditions contained in any other document or agreement issued by Buyer, whether in conflict with these GTC or not, shall be of no force or effect. Any documents that Buyer may use, including but not limited to purchase orders or sales acknowledgement forms, shall be deemed to be for administrative convenience only, and this GC shall prevail over any terms and conditions of Buyer that may appear on such forms.
2. Buyer acknowledges and agrees that this PO is not valid for projects based on plans and specifications as it is based solely on Seller’s product standards. Any plans, specifications, details, descriptions, drawings, documents, terms, and/or conditions not specifically created by Seller or referenced in this PO are not part of this PO and are not binding on Seller. Specifications as detailed or referenced in this PO and drawings created by Seller shall prevail at all times. It is Buyer’s sole responsibility to verify that all applicable building and/or insurance codes and/or regulations, whether shown opposite this PO or not, are correct and complied with. The Buyer understands and accepts that these items are beyond the Seller’s scope of expertise and that the Seller warrants only that the building will meet the specific loads indicated in the PO. Seller will not provide detailed shop drawings of individual parts of the Metal Building System. Buyer accepts Seller’s interpretation of this PO as correct and accepts full responsibility for any discrepancies in the Metal Building System. **Some standing seam roof panels require a special folding tool (“Folder”). If this PO includes a Folder, Seller’s standard terms and conditions for Folder rental are incorporated by reference herein. A deposit will be required, and Buyer agrees to pay such deposit as directed by Seller. Rental for the standard installation time may be included in the contract price; additional days will be charged at the rate shown on the face of this Contract. The Purchaser agrees to return the rented equipment via UPS or LTL insured carrier at the end of the rental period. The Purchaser is solely responsible for this equipment and for any personal injury resulting from its use and handling. The Buyer assumes the risk of any loss relating to the equipment, including damage, theft or acts of God, and shall indemnify the Seller for any loss, including damages, legal fees or costs resulting from any claim made against the Seller.
3. Seller may initiate and Buyer may request modifications to the Metal Building System specified in this PO. If Seller is willing to accommodate Buyer’s requests for modifications, it will do so by preparing a written change order sent to Buyer at the contact information provided in this PO. Buyer expressly agrees that any modifications resulting in additional costs will be the sole responsibility of Buyer, and manufacturing and delivery times will be extended at Seller’s discretion. Buyer agrees that any change order or clarification issued by Seller shall be deemed an amendment to this PO unless, within 2 days of the date of such change order, Buyer submits its written objections to Seller’s President or Executive Vice President.
4. Either party may cancel this PO by giving written notice to the other party at least 7 days prior to the cancellation date. In the event of cancellation, the initial deposit is non-refundable and Buyer agrees to pay Seller all costs and damages incurred, including, but not limited to, order processing, engineering, drawing, material purchase, manufacturing and applicable incidental damages and lost profits. In addition, if Seller considers Buyer’s performance under this PO to be inadequate, or if Seller receives any communication from a third party (owner, contractor, subcontractor, etc.) regarding Buyer’s lack of performance, Buyer authorizes Seller to communicate directly with any such third party and agrees that Seller may immediately cancel this PO, sell the Metal Building System to any third party deemed necessary and that Buyer shall indemnify Seller for all damages in accordance with these GTC.
5. As soon as the Metal Building System (or part thereof) is ready for delivery, the Seller will send a notice to the Buyer indicating the date(s) on which the System will be turned over to a carrier for shipment. The Metal Building System will be shipped “FOB” (free on board) from Seller’s facilities. Notwithstanding anything to the contrary in this PO, ownership of the Metal Building System sold by Seller to Buyer shall not pass to Buyer until it is shipped by Seller. As an accommodation, the Seller may arrange shipment of the Metal Building System to the Buyer’s designated yard, which agrees to reimburse the Seller for all shipping costs. If the Buyer prefers to arrange shipment himself, he must notify the Seller at least 30 days prior to the scheduled shipment date. If the Buyer refuses to take delivery on the specified date, the Seller may, at its discretion, charge the full price of the System or the part ready for delivery, and the Buyer shall reimburse the storage costs, including any related fees.
6. The Buyer acknowledges and agrees that it will inspect the goods and/or materials listed in the Purchase Order (PO) immediately upon delivery. The Seller shall not be liable for any claim for shortage of materials unless notified in writing by the Buyer within three (3) days of delivery of the materials concerned. If the Seller receives timely written notification from the Buyer of the alleged shortage of materials, the Buyer agrees that the Seller’s resolution of such claim shall be final. Any claim of defective or non-conforming materials, or any rejection of materials for non-conformance to PO requirements, must be made in writing within five (5) days of delivery of the materials. Buyer shall include in the notification the basis for the alleged nonconformity and a description of the portion of the shipment that is rejected, within the notification time periods set forth above (which Buyer acknowledges and accepts as a reasonable time period). Failure to provide the required written notice in a timely manner will constitute irrevocable acceptance of the goods and/or materials and will preclude any claim for which notice was required. Upon receipt of notice of rejection, Seller may arrange for the return of the materials for inspection. The Seller may also appoint an agent to inspect the materials in the event of non-conformity or carry out an inspection at its plant. If materials are found to be non-conforming, Seller will ship conforming goods within approximately thirty (30) days, unless Buyer notifies Seller otherwise to waive such shipment.
7. Payments under this PO and any other payments due to Seller from Buyer under any other agreement shall be made at Seller’s principal office or such other location as Seller may specify in writing. Unless otherwise specified, prices and amounts quoted on the PO do not include the cost of performance guarantees, payment bonds, or federal, provincial or local taxes, including, but not limited to, excise taxes, GST/QST, customs duties or other sales taxes. All such items or amounts which Seller may be required to pay or collect under existing or future laws, including, without limitation, taxes payable on the sale, purchase, delivery, storage, processing, use, consumption or transportation of any metal building systems and materials covered hereby, shall be for Buyer’s account and shall appear on Seller’s invoice to Buyer, payable by Buyer in accordance with the terms and conditions set forth herein. If Buyer claims that the purchase is exempt from sales tax, Buyer must immediately provide a valid tax exemption certificate to Seller’s tax department. Seller reserves the right to reject any tax exemption certificate submitted after shipment of the metal building system. Notwithstanding any other agreement to the contrary, Seller reserves the right, prior to any shipment, to require satisfactory security from Buyer for the payment of all taxes, costs and charges payable by Buyer. At Seller’s sole discretion, all orders must be prepaid or cash on delivery. Buyer agrees to provide Seller with an accurate legal description of any property where the metal building system is to be erected, Buyer’s legal entity type, organization identification number, business number and/or social insurance number and any other information requested by Seller. All credit terms will be established at the sole discretion of the Seller’s credit department, which may revoke them at any time. Seller reserves the right to invoice Buyer at the time of order, manufacture or shipment. Unless otherwise agreed in writing, all sums due by the Buyer to the Seller are payable on the date of the invoice. The Seller reserves the right to dispose of the metal building system as it sees fit if the Buyer defaults on payment. The Seller may assign its right to receive payments from the Buyer at any time, upon notification of the assignment to the Buyer. In the event of Buyer’s default under this PO or any other agreement, Seller shall have the right to withhold delivery and to require sufficient guarantees of Buyer’s ability to meet its obligations. Buyer agrees that any amount not paid within thirty (30) days of the invoice date shall bear interest at the rate of 10% per annum, but not exceeding the maximum rate permitted by applicable law.
8. LIMITATIONS OF WARRANTIES AND DAMAGES – Upon receipt by Les Bâtiments Metbec inc. (the “Seller”) of payment in full from the Buyer of all outstanding invoices with the Seller, and subject to the terms and conditions set forth herein, the Seller warrants to the Buyer that the Metal Building System will be free from defects in material and workmanship for a period of one (1) year from the date of shipment from the Seller’s facilities. The price quoted for any warranty herein may be adjusted for non-standard roof geometries, details, or for any non-approved or non-standard roof accessories or devices. Any price adjustment will be at Seller’s sole discretion. Damage resulting in whole or in part from faulty or improper installation, assembly or maintenance by third parties is NOT covered by this warranty.
9. For this warranty to be effective, the Metal Building System must be erected promptly after shipment, without undue delay, and in strict accordance with Seller’s erection procedures and guidelines. Any damage not directly attributable to the negligence or exclusive fault of the Seller is excluded from this warranty. Furthermore, damage resulting from misuse, abuse, improper maintenance or normal wear and tear is not covered by this warranty. Seller’s sole obligation and Buyer’s sole and exclusive remedy, at Seller’s option, under this warranty is limited to the repair of defective materials or the supply of necessary replacement materials FOB from Seller’s facilities. This obligation excludes all transportation, insurance or labor costs for disassembly and installation. This warranty is non-assignable and non-transferable and does not cover products, accessories, parts or devices not manufactured by the Seller.
10. EXCLUSION OF IMPLIED WARRANTIES – To the extent permitted by Quebec law, Seller makes no warranties or representations other than the express warranty set forth herein. All other implied warranties or representations, including, without limitation, implied warranties of merchantability or fitness for a particular purpose, are expressly excluded. This exclusion also applies to any liability, warranty or representation relating to water leakage, moisture penetration, damage to the building or any component or contents, including any interior space or property, whether past, present or future. Seller shall not be liable for claims relating to mold, mildew, fungus, interruption of use, personal injury or property damage resulting from the presence or alleged growth of mold, mildew or fungus.
11. LIMITATION OF DAMAGES – Seller’s maximum liability to Buyer or any third party, including any subsequent purchaser, in connection with this Purchase Order (PO), any warranty, in tort (including negligence), strict liability or otherwise, shall be strictly limited to the amount of the purchase price actually paid by Buyer to Seller for the Metal Building System. Buyer agrees to assume responsibility for insuring against or bearing the risk of any excess damages. In no event shall Seller be liable for any special, indirect, incidental, liquidated, consequential, exemplary, punitive, delay, coverage or reversal damages, even if Seller has been advised of the possibility of such damages. This includes, but is not limited to, personal injury, property damage, loss of or damage to equipment, loss of profits, revenues, savings or reputation, labor costs and expenses, equipment rental costs and other economic losses of Buyer or any other related costs or expenses, even if Seller has been advised of the possibility of such damages.
12. Seller shall not be liable for any damages, losses or expenses resulting from Buyer’s or any third party’s negligence, whether active or passive, or whether or not such negligence is a contributing factor to the damages, to the extent permitted by Quebec law. Buyer acknowledges that the price of products and services offered by Seller reflects the parties’ intent to limit Seller’s liability as set forth herein. Any action, claim or proceeding relating to this PO or the transactions contemplated by this PO must be commenced within two (2) years and one (1) day after the event giving rise to such action, claim or proceeding. Buyer agrees to use all reasonable efforts to mitigate damages suffered by itself, the Owners or any third party under or in connection with this PO.
13. Buyer’s Responsibility – Buyer acknowledges that it is responsible for determining the intended use of the Metal Building System ordered, its suitability for all uses, applications and loads to which it will be subjected, including, but not limited to, dead loads, wind loads, snow/ice loads, water loads, collateral and auxiliary loads, as well as its suitability for drainage systems/requirements, and its compliance with the requirements of applicable codes, regulatory agencies and authorities having jurisdiction. Buyer acknowledges that Seller is only a manufacturer of goods and is in no way responsible for the use, installation and/or application of the goods and/or materials covered by these terms. Buyer acknowledges that it is not unreasonable in today’s commercial environment to limit the award of indirect, special or consequential damages as contemplated by this Purchase Order (PO). Except for Seller’s obligations under the “Warranty”, all liability of Seller with respect to the Metal Building System shall terminate upon delivery thereof by Seller to a common carrier for shipment to Buyer. Any claims against the carrier for damage to or loss of the Metal Building System shall be made solely by the Buyer. Buyer acknowledges and agrees that Seller’s delivery schedule is approximate only. Without limiting the foregoing, if retrofit materials are provided as part of this order, Seller shall not be responsible for any results arising from the transfer of loads from one structure to another. Buyer acknowledges and covenants that Seller has not performed any suitability testing of the materials furnished hereunder and that Buyer has not relied on Seller’s representations, promises or assurances regarding such suitability. Buyer further acknowledges and agrees that waviness of the materials does not constitute grounds for rejection of the materials. Buyer acknowledges and agrees that the purchase price of the goods and services ordered in this PO or in any other sale by Seller to Buyer has been determined on the basis of the allocation of risks set forth in these terms and conditions.
13. Buyer’s Responsibility – Buyer acknowledges that it is responsible for determining the intended use of the Metal Building System ordered, its suitability for all uses, applications and loads to which it will be subjected, including, but not limited to, dead loads, wind loads, snow/ice loads, water loads, collateral and auxiliary loads, as well as its suitability for drainage systems/requirements, and its compliance with the requirements of applicable codes, regulatory agencies and authorities having jurisdiction. Buyer acknowledges that Seller is only a manufacturer of goods and is in no way responsible for the use, installation and/or application of the goods and/or materials covered by these terms. Buyer acknowledges that it is not unreasonable in today’s commercial environment to limit the award of indirect, special or consequential damages as contemplated by this Purchase Order (PO). Except for Seller’s obligations under the “Warranty”, all liability of Seller with respect to the Metal Building System shall terminate upon delivery thereof by Seller to a common carrier for shipment to Buyer. Any claims against the carrier for damage to or loss of the Metal Building System shall be made solely by the Buyer. Buyer acknowledges and agrees that Seller’s delivery schedule is approximate only. Without limiting the foregoing, if retrofit materials are provided as part of this order, Seller shall not be responsible for any results arising from the transfer of loads from one structure to another. Buyer acknowledges and stipulates that Seller has not performed any suitability testing of the materials furnished hereunder and that Buyer has not relied on Seller’s representations, promises or assurances regarding such suitability. Buyer further acknowledges and agrees that waviness of the materials does not constitute grounds for rejection of the materials. Buyer acknowledges and agrees that the purchase price of the goods and services ordered in this PO or in any other sale by Seller to Buyer has been determined on the basis of the allocation of risks set forth in these terms and conditions.
14. 9. ACCEPTANCE OF MATERIALS – The Buyer acknowledges, accepts and stipulates that the installation of materials shall irrevocably constitute acceptance of the materials.
15. 10. FORCE MAJEURE – In no event shall Seller be liable to Buyer, the building owner and/or any other party for: (a) any water intrusion or the existence of moisture occurring prior to delivery of the Metal Building System or existing thereafter, or any potential effects resulting therefrom; or (b) any delay, failure in performance or loss or damage due to force majeure conditions, including, without limitation: fire, flood, epidemics, quarantine, lightning, strike, embargo, explosion, power surge or failure, unforeseen events, acts of war or terrorism, labor disputes, civil disturbances, acts of civil or military authorities, inability to obtain materials, fuel, products or transportation facilities, actions or omissions of suppliers, or any other cause beyond Seller’s reasonable control.
16. 11. PRICE INCREASES – Buyer acknowledges and covenants that, in the event Seller receives notification of a price increase from any of its suppliers between the date of this PO and the scheduled delivery date of the Metal Building System, Seller reserves the right, in its sole discretion and judgment, to increase the purchase price stated in this PO by an amount equal to such price increase(s). Buyer further acknowledges and agrees that it shall pay Seller all surcharges, including but not limited to fuel surcharges, which Seller may apply prior to delivery of all materials covered by this PO.
17. 12. JURISDICTION, BINDING PLACE AND WAIVER OF JURY TRIAL – Except as otherwise expressly provided in this PO, the terms of this PO shall be construed in accordance with the section entitled “Current Industrial Practices” in the Low Building System Manual, latest edition, published by the Metal Building Manufacturers Association. If this Manual does not contain any provision applicable to the subject matter of any dispute over the interpretation of any term or provision of this PO, the interpretation of such term or provision shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada. Buyer further acknowledges, covenants and agrees that this PO has been executed, accepted and shall be enforced under the laws of the Province of Quebec, Canada. Buyer acknowledges, covenants and agrees that (i) any and all claims, actions, proceedings or causes of action relating to the validity, performance, interpretation and/or enforcement hereof shall be brought exclusively in a court located in the Province of Quebec, Canada, to the exclusion of any court in any other province, state or country; (ii) Buyer irrevocably submits to the exclusive jurisdiction of the courts of the Province of Quebec, Canada; (iii) Buyer irrevocably waives, to the extent permitted by law, any objection it may now or hereafter have to the exclusive venue of any legal proceeding in connection with this PO, and (iv) Buyer irrevocably waives any claim that any legal action brought in this court was brought in an inconvenient forum. IN ADDITION, EACH PARTY VOLUNTARILY AGREES TO WAIVE A JURY TRIAL WITH RESPECT TO THIS BC AND/OR THE DOCUMENTS INCLUDING ANY CLAIM, COUNTERCLAIM OR OTHER ACTION RELATED TO THIS BC. The scope of each such waiver is intended to be comprehensive. Buyer acknowledges that these waivers are essential elements of Seller’s agreement to enter into a business relationship with Buyer and that Seller has already relied on these waivers to enter into a contract with Buyer. Buyer warrants and represents that it has reviewed these waivers with its attorney, and that it voluntarily accepts each of these waivers after consultation with its attorney.
13. ASSUMPTION OF RISK AND COMPENSATION – The Buyer assumes full responsibility and liability for any claim or action based upon or arising out of injury, including death, to persons or damage to or destruction of property (whether owned by the Buyer, the building owner(s) or any third party), suffered or alleged to have been suffered in connection with or arising out of the performance hereof by Buyer, its agents and employees, and its subcontractors, their agents and employees, including claims based in whole or in part on the negligence or alleged fault of Seller, its representatives, or its employees, agents, invitees or licensees, to the extent permitted by law. Buyer further agrees to defend, indemnify and hold harmless Seller and its representatives, and their employees, agents, invitees and licensees, with respect to such matters, and agrees to defend any claim, suit or action brought against Seller, its representatives and their employees, agents, invitees and licensees.
14. Buyer’s Insurance Liability – Buyer acknowledges and agrees that Seller is not the Engineer of Record for this or any other project. Accordingly, Seller is not required to obtain or maintain professional liability, errors and omissions or similar insurance. Buyer agrees, at its own expense, to maintain insurance during the performance of the services covered by this Purchase Order (PO) and after completion of such services, including general liability insurance with a per incident limit of not less than $2,000,000. Such insurance shall include general liability, product liability and completed operations liability coverage, which shall extend for 3 years after completion of services. Buyer agrees to designate Seller as an additional insured by endorsement for the insurance coverages Buyer is required to maintain under these terms and Buyer’s insurance coverages shall prevail over, and not be concurrent with, any insurance coverage maintained by Seller. Buyer waives any right of subrogation against Seller. Buyer also agrees to provide Seller with subrogation waivers by endorsement on its insurance policies with respect to the insurance coverages described herein.
15. CONSUMER RIGHTS WAIVER – Seller and Buyer expressly agree that, to the fullest extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract or the performance thereof by either party.
16. Validity of Provisions – If any provision of this PO is held invalid or unenforceable in any jurisdiction, such provision shall be severed in its entirety in such jurisdiction, and this PO shall be construed and enforced as if such provision were never a part thereof. In such event, the remaining provisions of the PO shall remain in full force and effect. The Terms and Conditions of this PO, the Web Site Terms of Use Agreement, and any other terms and conditions set forth in any other agreement referenced herein, all incorporated by reference, constitute the final expression of the parties’ agreement containing all oral and written understandings between the parties relating to the Metal Building System referenced herein. The Buyer, by clicking on the “I AGREE” or “I ACCEPT THE CONDITIONS” button, accepts this PO, including the General Conditions contained herein, without reservation as if they had been signed in person and further waives any claim of invalidity based on lack of written signature.
Summary of Payment Terms: Payments shall be made in Quebec, in accordance with conditions to be established at the sole discretion of the credit department of Les Bâtiments Metbec inc.
ACCEPTANCE OF ORDER BY BUYER/CLIENT: Prices and terms are satisfactory and hereby accepted, subject to the terms and conditions set forth above. You are authorized to perform the work as specified. Payment will be made in accordance with the above terms and conditions.
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