Terms and Conditons of Sale (International)

TERMS AND CONDITIONS OF SALE (INTERNATIONAL)

1. Definitions: “Buyer” means the legal entity purchasing Products specified on Seller’s order acknowledgement. “Seller” means Building Materials Corporation of America d/b/a/ GAF. “Buyer” and “Seller” may be referred to herein individually as a “Party” and collectively as the “Parties.” “Product” means the product(s) specified on Seller’s order acknowledgement.

2. Each order shall be subject to Seller’s written acceptance in the form of an order acknowledgement. Seller may accept or reject, in its sole and absolute discretion, any order submitted by Buyer.

3. Unless otherwise agreed by Seller in its written confirmation of an applicable purchase order, the delivery terms for the Product shall be Ex-Works (per Incoterms 2010) at a location to be designated by Seller. If the delivery terms are Ex-Works at a location to be designated by Seller then Buyer shall be responsible for all shipping, insurance, delivery, customs, export, import and related transportation costs and charges, and Seller’s liability as to risk of loss of the Product shall cease upon Seller’s placing the Product at the disposal of Buyer at a location designated by Seller on the order acknowledgement.

4. Purchase orders shall be divisible according to shipments made, and each shipment is deemed to be a separate and independent sale. Seller reserves the right not to ship in any one month more than a pro rata quantity of the Product.

5. Prepayment shall be required for all Product purchased by Buyer, unless otherwise indicated in Seller’s order acknowledgement. If the order is subject to prepayment then all payments shall be made prior to the date of shipment of the Product by electronic transfer via ACH in United States dollars to the account set forth on Seller’s order acknowledgment.

6. All prices, charges and fees provided for in these Terms and Conditions of Sale and accompanying Agreement (if at all) and in Seller’s order acknowledgment, if any, are in U.S. dollars (unless expressly indicated otherwise in the case of a Seller order acknowledgment) and are exclusive of any Taxes levied against the prices, charges, fees or transactions provided by these Terms and Conditions of Sale and accompanying Agreement which, unless otherwise agreed, shall be payable by Purchaser. “Taxes” means any federal, state, dominion, provincial, or local sales, use, value added, personal property, withholding, excise, foreign currency, foreign payment or differential, or other taxes, fees, duties, penalties and interest thereon, but excludes any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits, or income tax of Seller. Buyer shall pay or reimburse Seller on demand for all such Taxes, or in lieu thereof, Buyer shall provide Seller with an exemption certificate acceptable to each applicable authority. If Buyer is required to pay any Taxes in respect of any payments due to Seller hereunder, Buyer shall gross up payments actually made so that Seller receives sums due hereunder in full and free of any deduction for any such Taxes.

7. Neither Buyer nor Seller shall be liable for delay or failure to perform, in whole or part, (other than the obligation of the Buyer to make the payments required to be made to Seller for Product purchased from Seller) due to contingencies beyond that Party’s control, whether herein specifically enumerated or not, including, among other things, Acts of God, force majeure, war, acts of war, revolutions, civil commotions, riots, acts of public enemies, national emergencies, blockades or embargos, delays of carriers, car shortages, fires, explosions, plant breakdowns, strikes, lockouts, labor disputes, casualties or accidents, earthquakes, epidemics, floods, cyclones, tornados, hurricanes or other windstorms, lack or failure of sources of supply of labor, raw materials, power or supplies, or excessive cost thereof, contingencies interfering with the production or with customary or usual means of transportation of the Product herein described, or with the supply of coal or fuel or any raw material of which said articles are a product or that may be used in their manufacture, delays of vendors or, where Product is not manufactured by Seller, lack or failure of sources of supply of said merchandise; or by reason of any law, order, proclamation, regulation, ordinance, demand, requisition or requirement or any other act of any governmental authority, national, state or local, including court orders, judgments or decrees, or any other cause whatsoever, whether similar or dissimilar to those above enumerated, beyond the reasonable contro1 of the Party whose performance is affected. Seller may eliminate, without liability, any quantities of Product so affected. The Party so affected shall promptly give written notice to the other Party whenever such contingency or other act becomes reasonably foreseeable, and the affected Party shall use its reasonable efforts to overcome the effects of the contingency as promptly as possible, and shall promptly give written notice to the other Party of the cessation of such contingency. Neither Party, however, shall be required to resolve a strike, lockout or other labor problem in a manner which it, in its sole and absolute discretion, does not deem proper and advisable.

If, by reason of any of the foregoing contingencies or of national emergency, the quantities of Product covered hereby, or any materials used in the production thereof, reasonably available to Seller shall be equal to or less than Seller's total needs for its own use and for sale, Seller may distribute its available supply among any or all purchasers and/or for Seller's own uses, on any basis Seller deems fair and practical, without liability for any failure to perform which may result therefrom.

8. Seller reserves the right, from time to time and at any time, in its sole and absolute discretion, without thereby incurring any liability to Buyer or to any third party, to cease selling or offering for sale any Product or to alter the design, composition, price or specifications of any Product.

9. SELLER WARRANTS THAT, AT THE TIME OF DELIVERY, THE PRODUCT DELIVERED HEREUNDER SHALL SUBSTANTIALLY CONFORM TO ANY WRITTEN SPECIFICATIONS FOR THE PRODUCT PROVIDED BY SELLER TO BUYER AND SHALL BE FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES. SELLER’S SOLE OBLIGATION, AND BUYER’S SOLE REMEDY, WITH RESPECT TO ANY NONCONFORMING PRODUCT IS, AT SELLER’S OPTION, EITHER (A) TO REPAIR OR REPLACE ANY NONCONFORMING PRODUCT, OR (B) TO REFUND THE PURCHASE PRICE PAID FOR THE NONCONFORMING PRODUCT, PROVIDED IN EACH CASE THAT BUYER TIMELY NOTIFIES SELLER OF THE NONCONFORMITY IN ACCORDANCE WITH THIS PARAGRAPH AND RETURNS THE NONCONFORMING PRODUCT TO SELLER IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. BUYER HEREBY EXPRESSLY ASSUMES ALL RISK AND LIABILITY WITH RESPECT TO RESULTS OBTAINED BY THE USE OF SUCH PRODUCT(S), WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS. SELLER ASSUMES NO LIABILITY EXCEPT AS PROVIDED IN THESE TERMS AND CONDITIONS OF SALE AND THE AGREEMENT TO WHICH THESE TERMS AND CONDITIONS ARE ATTACHED (IF AT ALL).

REGARDLESS OF THE THEORY ON WHICH A CLAIM MAY BE MADE INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, CONTRACT, BREACH OF WARRANTY, ABSOLUTE LIABILITY IN TORT, MISREPRESENTATION OR OTHERWISE, (A) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, ANY DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR ANY PECUNIARY LOSS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THAT DAMAGE, AND (B) SELLER’S AGGREGATE LIABILITY, INCLUDING ANY LIABILITY UNDER THIS PARAGRAPH SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT IN RESPECT OF WHICH DAMAGES ARE CLAIMED. IF BUYER FAILS TO GIVE GAFMC WRITTEN NOTICE OF NONCONFORMITY OF A PRODUCT OR ANY OTHER CLAIM WITH RESPECT TO SUCH PRODUCT WITHIN SIXTY (60) DAYS AFTER DELIVERY OF PRODUCT OR THE DATE STATED FOR DELIVERY, AS THE CASE MAY BE, SUCH FAILURE SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT TO SUCH PRODUCT. BUYER’S REMEDIES ARE LIMITED TO THAT SET FORTH ABOVE TO THE EXCLUSION OF ALL OTHER REMEDIES.

10. Buyer shall be liable for and shall defend, indemnify and hold Seller, its affiliates and their respective directors, agents, officers and employees (“Seller Parties”) harmless from and against any and all liabilities and damages and claims (including claims by the Seller Parties against Buyer) for damages, suits, proceedings, recoveries, judgments, executions, losses, costs, penalties, fines and expenses (each, a “Claim”), including, but not limited to, any accident, injury, damage, destruction or contamination whether to persons, property or the environment or from the death of any person, which may be made, had, brought or recovered arising from or related to any: (i) Distributor making representations or warranties to third parties and (ii) any claims or allegations that Product sold by Distributor violates any applicable laws and regulations outside of the United States. The indemnity for expenses incurred by any Seller Party, as set forth in this Section 10, shall include, without limitation, litigation costs and expenses and reasonable attorneys’ fees, including, but not limited to, such costs, expenses and fees incurred by any of the Seller Parties in defending any claims by a third party, pursuing claims against Buyer and in establishing and enforcing its right to indemnification hereunder.

11. In addition to any other rights and remedies available to Seller at law, in equity or herein, if Buyer defaults under or breaches any of these Terms and Conditions of Sale or any other agreement with Seller or if Seller at any time in its sole judgment shall not be satisfied with Buyer’s financial condition or payment record hereunder, Seller may immediately declare all amounts hereunder to be due and payable immediately, to suspend deliveries hereunder until such default or condition is remedied, or to decline to make further deliveries or terminate this contract with Buyer.

12. Seller shall have the right to increase any or all of the prices stated herein without prior notice to Buyer. Such price or prices shall be paid for all Product shipped hereunder on or after the date the increase becomes effective.

13. To the extent that these Terms and Conditions of Sale conflict with the terms of any written agreement between the Parties then, unless the written agreement between the Parties provides otherwise, the terms of that written agreement will supersede these Terms and Conditions of Sale. Otherwise, these Terms and Conditions of Sale constitute the entire agreement and understanding between the Parties with respect to the sale and purchase of the Product, and supersede all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, with respect to the subject matter hereof. No terms, conditions or amendments stated by Buyer in any purchase order, acceptance, acknowledgment or any other form will become part of these Terms and Conditions of Sale and the agreement to which they are attached (if at all) unless expressly agreed upon in writing by Seller. Seller objects to and rejects any additional or different terms in Buyer’s purchase order, acceptance, acknowledgment or other forms. In its sole and absolute discretion, Seller may modify these Terms and Conditions of Sale by providing modified terms and conditions to Buyer. No failure of either Party to enforce any provisions hereof shall constitute a waiver by that Party of its right subsequently to enforce the same or any other provision hereof. No waiver of any provision of these Terms and Conditions of Sale shall be effective unless in writing signed by the Party claimed to have waived such provision.

14. Buyer shall not assign any of its rights or obligations hereunder without the prior written consent of Seller. Any such purported assignment shall be of no force or effect and shall be void and invalid.

15. Seller may delegate any or all of its rights and/or obligations hereunder to an affiliate, subsidiary or an entity, which wholly or partially controls, is controlled by or is under common control with Seller.

16. If any of these Terms and Conditions of Sale is held to be invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of the terms and conditions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, and such invalid, void or unenforceable term shall be replaced by the Parties by a term which most closely reflects the intent of the Parties hereto. The Parties requested that these Terms and Conditions of Sale and all other documents related to these Terms and Conditions of Sale be drafted in English.

17. Any disputes arising from these Terms and Conditions of Sale shall be governed by, and performance construed under, the internal laws of the State of Delaware, USA, without regard to conflicts of law principles. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) does not and shall not apply.

18. Any dispute, controversy or claim arising out of or relating to these terms and conditions and any other agreement between the Buyer and Seller, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the rules of the International Centre for Dispute Resolution division of the American Arbitration Association (the "ICDR") then currently in effect, by a sole arbitrator. If the parties fail to agree on an arbitrator within 30 days of the commencement of the arbitration, then the parties will allow the ICDR to select the neutral arbitrator pursuant to the rules of the ICDR then currently in effect. The arbitrator will not be permitted to award punitive damages against any party. The prevailing party of the arbitration will be entitled to an award of its reasonable and necessary attorneys' fees, costs and expenses. The place of arbitration will be Wilmington, Delaware, USA. The language to be used in the arbitral proceedings will be English. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. The procedures specified in this Section 13(c) shall be the sole and exclusive procedures for the resolution of only and all disputes between the parties arising out of or relating to this Agreement. The requirements of this Section 13(c) shall not be deemed a waiver of any right of termination under this Agreement.

19. Any notice, request, demand or other communication to be given hereunder shall be in writing and either (i) personally delivered, (ii) sent by prepaid registered mail, (iii) sent by recognized courier, or (iv) sent by facsimile transmission (with a copy sent by registered mail to follow), to Seller at GAF, 1361 Alps Road, Wayne, New Jersey 07470 Attn: Director of International Sales with a copy at the same address Attn: Law Department and to Buyer at the address indicated on Seller’s order acknowledgement.

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