Terms & Conditions of Sale

Effective: January 1st, 2025

The following Terms and Conditions of Sale (“Terms”) apply to all sales of Products by Agway Metals Inc. (“Agway”) and the Customer.

1. Definitions

In these Terms:

“Customer” means the purchaser of the Products pursuant to the Contract.
“Contract” means the contract formed between the Customer and Agway pursuant to an Order which has been accepted by Agway in writing (of which these Terms are deemed to form a part).
“Order” means either of the following that has been accepted in writing by an authorized representative of Agway: (a) a written Sales Order Confirmation or Sales Proforma from Agway to the Customer; or (b) a written purchase order of the Customer in a form and content satisfactory to Agway in its sole discretion.
“Parties” means Agway and the Customer and “Party” means Agway or the Customer.
“Products” means the goods, products and/or materials to be sold by Agway to the Customer pursuant to and as specified in the Contract.
“Purchase Price” means the price payable by the Customer pursuant to and as specified in the Contract.

2. Entire Agreement

The Contract, including these Terms, together with any Agway credit application entered into by the Customer, is the complete and entire agreement between the Parties with respect to the subject matter of the Contract. Agway hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between the Parties (including on any of the Customer’s forms), it being understood that the terms and conditions of the Contract (including these Terms) shall prevail notwithstanding any such additional, different or conflicting terms. Without limiting the generality of the foregoing, no understandings or communications between the Parties, whether written or verbal, including but not limited to any bid invitation, proposal or other document exchanged between the Parties on or before the date of the Contract, no information and data contained in general product documentation and price lists, no head or prime contract between the Customer and its client/customer, and no provisions contained in the Customer’s purchase documents, purchase orders, work orders, acceptance documents or other communications or forms form part of the Contract and none of the foregoing has any legal effect between the Parties unless contained expressly in the Contract.

3. Payment

New Accounts. All new accounts are prepaid prior to production until credit is granted by Agway. The Customer must allow a minimum of 10 business days for a credit review. Incomplete credit applications or non-responses from references will extend the review period and may result in denial of credit.
Payment. Invoices of Agway are due and payable 30 days from the date of each invoice, unless otherwise stated by the Agway on the Order, Sales Proforma or invoice. All payments shall be made without any deduction, set off, counterclaim or abatement and for
greater certainty, the Customer shall pay the full amount of each invoice without any retainage for holdback, statutory or otherwise. Any invoice which is not paid when due shall bear interest at the rate of 2.0% per month (24% per year) until the date the invoice is paid in full. All invoices shall be deemed admitted and conclusive against the Customer unless dispute in writing within 20 days of the invoice date. All amounts stated shall be paid in Canadian dollars. Prices do not include taxes of any kind. The Customer shall also pay Agway all applicable taxes due and payable in connection with the provision of the Products to the Customer including, without limitation, all HST, GST, provincial sales tax and any other forms of value added or sales tax as are from time to time chargeable and payable at law in connection with the Products. Agway reserves the right (regardless of any contrary direction) to apply any monies received by it on the Customer’s account to such invoices and accounts of the Customer and as to principal or interest as Agway deems fit. The Customer agrees to indemnify and hold harmless Agway from and against any and all losses, liabilities, claims, costs and expenses whatsoever (including legal expenses on a fully indemnity basis) suffered or incurred by Agway in the collection (including execution) of any monies due to Agway or in enforcing any of Agway’s rights under the Contract.
Payment Default; Insecure Credit. Upon default by the Customer or in the event that Agway at any time determines that its credit position is in any manner insecure, inadequate or in jeopardy, Agway may, without limiting its other remedies hereunder or at law (and notwithstanding any existing contracts or commitments to the Customer including a commenced delivery or performance): (1) deem all amounts invoiced to the Customer by Agway to be immediately due and payable, (2) take possession of any Products, (3) enforce its security against the Customer, (4) refuse, stop, cease or suspend further sales, ability to buy on credit, deliveries or related services to the Customer including Products in transit, and/or (5) impose prepayments or request other forms of security as Agway deems fit. If Agway suspends its performance under this Section, then the completion, delivery and other performance dates contemplated under the Contract shall be adjusted as reasonably required to accommodate the effects of such suspension of performance, and the Customer shall pay Agway additional costs reasonably and necessarily incurred by Agway. For clarity, Agway shall not be liable for any damages or costs of any kind whatsoever that may be incurred or suffered by the Customer or others on account of any delay (including any schedule delay/slippage) caused by Agway’s decision to suspend performance under this Section.

4. Delivery

Terms of Delivery. Agway shall have care, custody and control of, and shall bear the risk of physical loss with respect to, the Products during transit. Risk of loss with respect to the Products shall transfer to the Customer upon delivery of the Products to the agreed upon delivery location, except if the Customer picks up the Products at an Agway location. If the Customer offloads the material themselves from an Agway truck, the Customer assumes responsibility at that time.
Dates and Schedule. Unless otherwise specified in the Contract, any delivery date or schedule specified in the Contract is an estimate only. Agway shall use commercially reasonable efforts to meet such delivery date or schedule but shall not be liable for damages of any type whatsoever for delay. Delays preventing the provision of the Products which do not arise out of Agway’s breach of its obligations under this Contract shall enable Agway to review and revise its pricing and schedule/delivery date.
Failure to Accept Delivery. If the Customer fails to accept delivery of any Products at the delivery time set out in the Contract for reasons other than for substantial non-conformity of the Products with the Contract, Agway shall arrange for storage of the Products at the Customer’s risk (notwithstanding the fact that delivery to the Customer may not have occurred) and expense. Notwithstanding the foregoing, the Customer shall pay any part of the Purchase Price which becomes due on delivery, as if delivery had taken place. The Customer shall not have the right to divert or reconsign such shipment to any destination other than specified in the bill of lading without the permission of Agway.
Minimum Delivery Charge. Orders less than $500.00 net invoice value will be subject to a delivery charge.
Job Site Delivery. For each job site delivery, a complete shipping address must accompany the Order, complete with site contact name and phone number.

5. Title

Title to the Products shall remain vested in Agway (even if affixed to real or personal property), and nothing contained in the Contract shall be deemed to have the effect of transferring right or title in any Products provided until such time as the amounts due for the Products have been paid for in full. Until payment in full, all Products sold by Agway are removable at the discretion of Agway (notwithstanding any enclosure or affixation to real or personal property) and Agway is authorized to enter upon such property for the purposes of such removal notwithstanding any damage caused by such removal. The Customer agrees to indemnify and hold harmless Agway from and against any and all losses, liabilities, claims, costs and expenses whatsoever (including legal expenses on a fully indemnity basis) suffered or incurred by Agway in the removal of its Products, including, without limitation, any suffered or incurred in the removal, destruction and repair of walls or other improvements or chattels.
Agway warrants that it has good and marketable title to the Products.

6. Obligations of Customer

The Customer shall:

comply with all applicable governmental laws, ordinances, codes, rules, regulations and orders in connection with its purchase, shipment, installation, use and maintenance of the Products;
to the extent the Customer maintains any insurance policy(ies) that may provide coverage for a loss, a claim or any damages that are caused by the Products (save and except if the loss, claim or damages was caused by the substantial nonconformance of the Products with the requirements of the Contract), give notice to the insurer(s) on a timely basis and in accordance with the terms of the applicable policy;
obtain all permits or licenses required to be obtained by it in connection with the purchase, shipment, installation, use and maintenance of the same;
provide Agway with timely and comprehensive instructions and directions upon request, which Agway may rely upon; and
indemnify and hold harmless Agway and its affiliates and related entities, and its and their respective officers, directors, employees, agents and representatives (collectively, the
“Agway Parties”), from and against any and all liabilities, costs, expenses (including, without limitation, legal fees and expenses), claims, demands, causes of action, damages and judgments (collectively, “Losses”) suffered or incurred by the Agway Parties relating to the Products and their use by or on behalf of the Customer or any other person, including without limitation pursuant to any third party claims. Notwithstanding the foregoing, the Customer is not required to indemnify and hold harmless Agway Parties to the extent the Losses are directly caused by the substantial nonconformance of the Products with the requirements of the Contract.

7. Acceptance and Defective Products

Acceptance. The Customer will be conclusively deemed to have unconditionally and irrevocably accepted Products upon the completion by Agway of the delivery of the relevant Products if the Customer does not, within 14 calendar days of receipt of the Products at the agreed upon delivery location: (a) provide written notice to Agway of the Customer’s rejection of the same, provided that the Customer may only reject any Products if it is not substantially in conformity with the requirements of the Contract (a “Rejection Notice”); and (b) provide Agway a meaningful opportunity to investigate the alleged substantial nonconformance. For clarity, Agway shall have no liability for any actual or alleged damage, defects, errors, shortages of products, or the like, unless the same constitutes substantial nonconformance with the Contract and has been reported in a Rejection Notice in accordance with the foregoing. Without limiting the foregoing, all defects that are visible prior to use, erection or installation of Products must be reported in a Rejection Notice in accordance with the foregoing and before the use, erection or installation of the Products.
Agway’s Obligations for Defective Product. If a Product is found to not substantially conform with the requirements of the Contract, and provided the Customer has complied with clause a. above, Agway shall at its option: (a) replace such Products or portion thereof to the extent of the proven substantial nonconformance; or (b) provide a credit for the portion of the Purchase Price related to the Products or portion thereof proven to be in substantial nonconformance. In no event shall labour costs for erection or installation of Products form the basis of any claim by the Customer against Agway.
Undiscoverable Defects. Notwithstanding Section 7.a above, in the event the Products contain a defect or deficiency that: (i) renders the Products to not substantially conform to the requirements of the Contract; (ii) was not capable of being reasonably discovered from a thorough inspection of the Products within 14 calendar days of receipt of the Products; and (iii) was not visible prior to use or erection of the Products (an “Undiscoverable Defect”), then: (a) the Customer shall, within three (3) calendar days of becoming aware of the Undiscoverable Defect, provide written notice of same to Agway; (b) the Customer shall not install more than five (5) defective panels or 20% of the panels in question on order, whichever is less; and (c) Agway shall comply with its obligations in accordance with Section 7.b.
Claims Related to Transit, Loading, or Offloading. The Customer must inform Agway of any claim due to transit, loading, or offloading within 14 calendar days of receipt of the Products. If the Buyer moves Products from the original unload point without making any claims due to transit, loading, or offloading, Agway will not be liable for such claim.
Oil Canning. Oil canning is a perceived waviness of a metal panel and is inherent to light gauge, cold-rolled metal products, which can occur in any type of metal material used in construction. The severity of oil canning will vary depending on several factors including but not limited to: colour, finish, time of day, time of year, panel width, amount of or lack of stiffening ribs, imperfect or uneven structure or roof surface, structural changes or settling, improper handling, improper installation of the panel, misalignment of the panel, improper installation of clips, not using backer rod, and the angle at which the panel is viewed. Oil canning is a cosmetic issue and does not affect the structural integrity of the panel. There is no complete or perfect remedy for oil canning. The Customer acknowledges that oil canning does not constitute substantial nonconformity with the Contract and is not a valid reason for rejection of Products.

8. Returns

Prior authorization from Agway, in the form of an RMA number, must be obtained before returning Products for credit, and Agway may grant or withhold such authorization in its sole discretion. Agway personnel will not accept or pick up Products for return without this authorization. If a return is accepted, a return authorization form will be provided to the Customer and must be clearly indicated on the Customer’s returns (prepaid shipments only). Unless the product is deemed defective by Agway, all returned Products must be in saleable condition, be in original containers and/or packaging, and will be subject to inspection and a restocking charge to be determined by an authorized Agway representative. Return freight is to be prepaid by the Customer. A 15% restocking fee will be charged on all returned Products. Orders made pursuant to Customer provided specifications cannot be returned. Any returned Products will be picked-up at dealer location only.

9. Termination for Customer Default

Agway shall have the right to terminate the Contract upon the occurrence of any one of the following events if same is not cured within 7 days following the delivery by Agway to the Customer of a written notice of such event, or, if capable of being cured but not within such period, if the Customer has not commenced the cure within such period and does not thereafter diligently pursue such cure (provided that such 7 day or longer cure period does not apply to a failure of the Customer to make the payment(s) due within the agreed payment term):
1. the Customer shall have assigned or transferred the Contract or any right or interest herein except as expressly permitted by the Contract;
2. any representation made by the Customer in the Contract shall have been materially false or misleading when made;
3. the Customer shall have defaulted in its performance under any provision of the Contract;
4. Agway does not receive from the Customer the payment(s) due within the agreed payment term;
5. a prolonged suspension affects the whole of the Agway’s delivery of the Products; or
6. the Customer shall have ceased to conduct the normal course of its business, seeks protection under bankruptcy, insolvency, reorganization or creditor moratorium laws, becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, if proceedings are initiated by or against the Customer seeking relief, reorganization or rearrangement under laws relative to insolvency, or if a receiver, liquidator or trustee is appointed in respect of any material property or assets of the Customer.
In the case of such termination under this Section, title to all Products that has previously passed to the Customer shall automatically revert to Agway until Agway receives the payment required by this Section, at which time title shall pass to the Customer.
In the case of such termination under this Section, Agway shall, in addition to any other rights and remedies hereunder or at law or in equity, be entitled to receive from the Customer and the Customer shall promptly pay to Agway the sum of: (1) the greater of: (i) payment for Products manufactured in whole or in part prior to termination for which Agway has not already received payment (including, without limitation, the costs of supplies and inventory, and payment for work in progress and Products and components procured or produced but not yet delivered to the Customer at the time of termination and profit earned and overhead costs to the time of termination); and (ii) the next milestone payment; plus (2) all other costs and expenses incurred by Agway by reason of such termination of the Contract, including, without limitation, costs in connection with the disposition of work and material on hand, interest on overdue payments and any material supplier cancellation payments or costs. For greater certainty, Agway shall be entitled to recover loss of profits, overhead costs and any incidental, consequential or other damages due to such termination

10. Warranty

Agway will obtain and provide to the Customer the respective manufacturer(s)’ warranty(ies) that Agway receives from its manufacturers in respect of the Products (the “Manufacturer Warranties”). Delivering to the Customer the Manufacturer Warranties is Agway’s only obligation under this Contract with respect to Product warranties. For clarity, any other warranties, conditions, guarantees or similar obligations, whether express or implied by fact, by law (including any statute or regulation), by custom or trade usage or by any course of dealing, including, without limitation, any implied warranties of quality, merchantability, fitness for a purpose and fitness for a particular purpose or otherwise, are excluded from this Contract and are inapplicable. For clarity, Agway shall have no liability under any Manufacturer Warranties and the Customer shall look exclusively to the applicable manufacturer for any claim it may have in respect of the Manufacturer Warranty.

11. Limits of Liability

Notwithstanding any other provision of the Contract including these Terms, Agway shall in no event be liable to the Customer or any other person with respect to any Products sold by Agway, by way of indemnity or by reason of any breach of contract, warranty, statutory duty, tort, negligence, strict liability or otherwise, whether or not the possibility of such losses or damages were known or should have been known by Agway, (a) for any indirect, special, incidental, punitive, aggravated, exemplary or consequential loss or damage including loss of production, revenues, profits, opportunities, market or use, or economic loss, which may be suffered by the Customer or any other person, (b) for any loss or damage which may be suffered by the Customer or any other person as a result of any suspension or cancellation of the Contract by Agway in accordance with its terms, (c) costs of labour, and (d) in an amount in excess of the Purchase Price paid for the Products.

12. Intellectual Property

Agway retains all ownership of its intellectual property of every nature and kind and of all materials prepared or developed by Agway or its employees, including without limitation all trademarks, patents, copyright, industrial design or other intellectual property rights related to the Products and all specifications, plans, designs, concepts and other proprietary information related to the Products. Under no circumstance shall the Customer reverse engineer the Products for the Customer’s use, without prior written permission from Agway.

13. Confidentiality

Unless otherwise specified in the Contract, all information including general business information, financial data, technical data, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans, methods or other intellectual property supplied, disclosed, conceived or prepared by Agway in connection with the Contract, whether disclosed verbally, in writing, in electronic or other form, shall be considered confidential, shall not, at any time, be disclosed to a third party by the Customer without the written consent of Agway and shall be used by the Customer solely for the purpose of using and maintaining the Products or projects to which the Products relates.

14. Assignment

The Contract including these Terms shall be binding upon and enure to the benefit of the Parties and their successors and permitted assigns. No assignment of the Contract, in whole or in part, or of monies due or to become due hereunder, shall be made by the Customer without the prior written consent of Agway, and if such consent is provided the Customer shall remain liable, jointly and severally with the assignee, for the obligations of the Customer under the Contract. Agway in its sole discretion may assign the Contract to any of its affiliates or related entities or to any purchaser of all or substantially all of the assets of Agway, and Agway may subcontract its rights or any portion of its responsibility under the Contract to any of its affiliates or related entities or any third party.

15. Force Majeure

Agway shall not be considered in default or be liable for any failure to perform or delay in performing any obligation under the Contract in the event and to the extent that such failure or delay is caused by a condition of force majeure. A condition of force majeure is an event beyond the reasonable control of Agway which prevents, delays or impedes the performance of the Contract by Agway, including without limitation the following: change in law, war, revolution, riots, insurrection, shortages (of raw materials, fuel or transportation), civil commotion, invasion, armed conflict, hostilities, acts of terrorism, epidemics, pandemics, public health emergencies, sabotage, theft, explosions, fires, earthquakes, floods, other natural physical disaster, embargo, prohibition on import and exportation of materials or equipment or services, contamination, acts of God, hazardous properties, transportation blockages, electricity supply interruptions and power failures, strikes, work stoppages, slowdowns or other labour actions and failure of government to issue permits or approvals.

16. Changes

Requests by the Customer for any changes to the Products, including but not limited to, changes in specifications, quantities, delivery obligations and terms of payment, must be made to Agway in writing. All such requests are subject to Agway’s written acceptance, which may be withheld in Agway’s sole discretion, and may result in adjustments to the Purchase Price and/or delivery schedules which must be agreed to in writing as part of a Contract change order. Agway reserves the right to make substitutions and modifications in the specifications of any Products, provided such substitutions or modifications do not materially adversely affect the performance of the Products.

17. General

Governing Law. The Contract, including these Terms, shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving consideration to any conflict of law rules). The Parties agree that the courts of Ontario have jurisdiction to entertain any legal proceedings in respect of the Contract, including these Terms, and the Parties hereby irrevocably consent to and attorn to the exclusive jurisdiction of such courts. Agway may take proceedings for enforcement in any jurisdiction. The International Sale of Goods Act and the United Nations Convention on Contracts for The International Sale of Goods do not apply to the Contract.
Duplicate Orders. In the event duplicate orders are sent or placed by the Customer, Agway is not responsible for identifying or resolving the duplication error and the Customer shall remain responsible for paying all applicable invoices of all orders placed including the Order.
Interpretation. The headings of these Terms are solely for convenience of reference and do not affect the interpretation thereof or define, limit or construe the contents of any provision of these Terms. Notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty will not be construed against any Party by reason of the authorship of any provision hereof.
Notices. Any notice, request, or other document to be given under the Contract (a “Notice”) shall be in writing and sent to Agway or the Customer, as applicable. A Notice shall be sufficiently given by courier, personal delivery, email, or postage prepaid ordinary mail. The Notice shall be deemed to have been received: (i) on the third business day following the day of the mailing, if sent by mail; or (ii) on the date it was received, if given by courier, personally or by email.
Amendment. No waiver, alteration, revision or modification of the Contract (including these Terms and Order) shall be binding on either Party unless made in writing and signed by each of the Parties.
Survival. The completion, cancellation or termination of the Contract shall not release or relieve either of the Parties from any obligation or liability under the Contract including those Terms which expressly or by their nature survive such completion, cancellation or termination, including, without limitation, all obligations of the Customer to pay amounts owed to Agway and all rights of Agway in respect thereof, all indemnities in favour of Agway, all limitations of liabilities in favour of Agway, and all obligations of confidentiality contained herein.
No Waiver. The delay or failure of a Party to exercise a right or remedy under the Contract including these Terms shall not operate as a waiver of that right or remedy. No single or partial exercise of any right or remedy precludes subsequent exercise of that or any other right or remedy.
Severability. If any provision of the Contract including these Terms is found to be invalid or unenforceable, neither the validity nor enforceability of any other provision of the Contract including these Terms shall be affected or impaired. The invalid or unenforceable provision shall be severed and replaced with a valid or enforceable provision that accomplishes the same intent to the greatest extent possible.
Relationship. The relationship between the Parties shall be that of independent contractors (including for purposes of the Income Tax Act (Canada)) and no partnership, agency, joint venture or any other relationship shall arise pursuant to the Contract.
Agway’s Standards. Unless otherwise expressly stated in the Order, the Products sold hereunder shall be subject to Agway’s standard manufacturing variations, tolerances and classifications.
Technical Advice. Unless it shall have expressly agreed upon in writing, Agway shall not be responsible for the results of any technical advice in connection with the design, installation or use of the Products.
Loading and Carrier Selection. Unless specifically agreed upon in writing in the Order, the loading arrangement and selection of carrier shall be at the direction and discretion of Agway.
Price Increases. If, during the performance of this Contract, the prices of Agway’s manufacturers, suppliers or vendors significantly increases, through no fault of Agway, the price of the Products shall be equitably adjusted by an amount reasonably necessary to cover any such significant price increases. As used herein, a significant price increase shall mean any increase in price exceeding 30% experienced by Agway from the date of signing the Contract. Such price increases shall be documented by Agway through quotes, invoices, or receipts. Should there be a rise in the cost of the Products that, exclusive of any other adjustments that had been made to the Purchase Price, would cause the Purchase Price to increase by more than 30% Agway may then, at its option, terminate the Contract upon five (5) business days’ notice to the Customer and in the event of such termination Agway shall be paid for the portion of the Purchase Price earned to the date of termination.