ENFINITY

These Terms and Conditions of Sale bind ENFINITY ROOFS LLC., and all of their U.S. affiliates selling Goods in the United States (“ENFINITY ROOFS LLC”) and its customer (“Buyer”) regarding the sale by and purchase from ENFINITY ROOFS LLC of products (“Goods”) in the United States of America and its territories (“US”). By accepting delivery of Goods from ENFINITY ROOFS LLC, the Buyer agrees to be bound by these Terms and Conditions of Sale.

1. TERMS AND CONDITIONS TO GOVERN. These Terms and Conditions of Sale supersede all prior agreements, proposals and discussions between the parties with respect to the purchase and sale of Goods. Any additional, inconsistent or different terms or conditions contained in Buyer’s purchase order or other documents submitted to ENFINITY ROOFS LLC by or on behalf of Buyer at any time, whether before or after the date hereof, shall be deemed a material alteration and not a rejection of these Terms and Conditions of Sale, and are hereby expressly rejected by ENFINITY ROOFS LLC. These Terms and Conditions of Sale shall be deemed accepted by Buyer without any such additional, inconsistent or different terms and conditions. Unless otherwise specified, these Terms and Conditions of Sale shall continue in effect until the expiration of the applicable statute of limitations.

Unless otherwise expressly set forth in these Terms and Conditions, only the corporate officers of ENFINITY ROOFS LLC shall have the legal authority to modify or amend any provision of these Terms and Conditions or any ENFINITY ROOFS LLC warranty. No such modification or amendment will be valid or binding upon ENFINITY ROOFS LLC unless agreed to in writing and signed by an authorized corporate officer of ENFINITY ROOFS LLC. An employee of ENFINITY ROOFS LLC who is not an authorized corporate officer of ENFINITY ROOFS LLC has no actual, apparent, or implied authority to legally bind ENFINITY ROOFS LLC in any manner whatsoever.

1. PRICES. Unless otherwise specified in writing by an authorized corporate officer or a Director of Sales of ENFINITY ROOFS LLC, all prices shall be as set forth in the price lists (“Price Lists”) issued from time to time by ENFINITY ROOFS LLC on a regional or other basis, which price lists are subject to change without notice to Buyer. Upon a change to the prices set forth on any Price List, all unshipped orders will be billed at the price in effect at the time of shipment. All prices are exclusive of taxes, customs, duties, transportation and insurance, and any and all current or future tax or governmental charges (including, without limitation, any sales or use tax) applicable to the sale, delivery, shipment, storage or use of the Goods that ENFINITY ROOFS LLC is required to pay or collect, shall be for Buyer’s account and shall be added to the price and not subject to reduction.

1. PAYMENT TERMS. Unless otherwise specified in writing by an authorized corporate officer or a Director of Sales of ENFINITY ROOFS LLC, the payment terms shall be 1% 15th MF, net 30th MF. Buyer shall be liable for all expenses attendant to collection of past due amounts, including attorneys’ fees and costs. ENFINITY ROOFS LLC shall have the right to set-off any amounts owing from Buyer against any amounts payable to Buyer. In the event that ENFINITY ROOFS LLC determines, at any time in its sole and absolute discretion, that it does not want to sell Goods to the Buyer, including if it determines in its sole discretion that the credit of Buyer or of any person or entity providing credit support for Buyer’s obligations to ENFINITY ROOFS LLC is or becomes impaired, or there is any reason to doubt the enforceability or sufficiency of any agreement, instrument or document supporting Buyer’s obligations to ENFINITY ROOFS LLC, ENFINITY ROOFS LLC shall have the right, among any other rights provided by applicable law, to declare immediately due and payable any and all amounts owed by Buyer to ENFINITY ROOFS LLC, whether under these Terms and Conditions of Sale or otherwise, and to suspend and/or terminate further production, shipment, and delivery of Goods to Buyer under any order, whether under these Terms and Conditions of Sale or otherwise, until ENFINITY ROOFS LLC determines, in its sole discretion, that ENFINITY ROOFS LLC will sell Goods to the Buyer, and that credit arrangements satisfactory to ENFINITY ROOFS LLC in its sole discretion have been established. If Buyer desires credit from ENFINITY ROOFS LLC, or if any such credit is provided to Buyer, or performance assurance is required by ENFINITY ROOFS LLC of Buyer, Buyer will provide to ENFINITY ROOFS LLC the financial information requested.

1. TERRITORY. The Buyer shall limit its sale and distribution of the Goods to customers located within the United States of America and its territories (the “Territory”). Without limiting the generality of the foregoing, Buyer must promptly refer to ENFINITY ROOFS LLC any inquiries received from any sources outside the Territory, and Buyer must not (i) promote, market or solicit any sales of the Goods outside the Territory, (ii) directly or indirectly sell the Goods to any persons located outside of the Territory, or (iii) directly or indirectly sell the Goods to any persons within the Territory if the Buyer knows or ought to know that such person may market and/or directly or indirectly resell the Goods outside of the Territory.(b) Buyer shall also use all reasonable endeavors to ensure that the Goods sold to its customers will be marketed and sold only in the Territory. Such steps shall include, without limitation, (i) requiring of its customers a contractual commitment that the Goods will not be marketed or resold outside the Territory, and (ii) if Buyer becomes aware that any person inside the Territory has marketed or resold the Goods outside the Territory, or plans or intends to do so, giving immediate notice thereof to ENFINITY ROOFS LLC (and including with its notice all information which it is aware of in respect of such matter) and immediately ceasing to supply such person with Goods.(c) In the event Buyer violates the provisions of this Article, Buyer shall be deemed to have materially breached this Agreement, and, in addition to all other remedies provided for at law, at equity or in this Agreement, ENFINITY ROOFS LLC shall be entitled, at its sole discretion, to immediately (i) terminate this Agreement and any or all of the rights granted herein to Buyer without prior notice, (ii) eliminate or reduce any discounts or rebate payments to Buyer in respect of its purchase of Goods from ENFINITY ROOFS LLC, (iii) claim and receive from the Buyer compensation for damages incurred by ENFINITY ROOFS LLC as a result of the Buyer’s violation of this Article, and (iv) receive injunctive relief to prevent shipment from any court of competent jurisdiction, without posting a bond or other means of security therefore. Buyer hereby expressly waives in advance the right to claim a guarantee, bond or undertaking as a condition for ENFINITY ROOFS LLC obtaining injunctive relief.
   (d) In the event that the Buyer sells Goods directly or indirectly outside the Territory in violation of this Article, any ENFINITY ROOFS LLC warranty applicable to such Goods shall be void, as per the ENFINITY ROOFS LLC Asphalt Shingle Limited Warranty, and Buyer shall be responsible for any warranty claims seeking compensation in respect of such Goods.”

1. SHIPMENT; TITLE; RISK OF LOSS. ENFINITY ROOFS LLC reserves the right to accept or refuse any order for Goods received at its sole discretion. All shipping dates are approximate and not guaranteed. No delivery delay will entitle Buyer to a chargeback, set off or claim for direct, indirect, incidental or consequential or other damages of any kind. Title and risk of loss shall pass from ENFINITY ROOFS LLC to Buyer once the Goods are loaded on the first carrier at ENFINITY ROOFS LLC’s facility, and all claims for loss or damage from that point in time and on, including in transit, must be filed against the carrier by Buyer. Buyer shall pay freight, unless prepaid, and shall unload shipments promptly. Any increase in freight rates for shipments, whether prepaid or not, and all demurrage shall be borne by Buyer. Restrictions on delivery and any delivery discounts or surcharges shall be on terms set forth in the Price Lists.

1. EXCUSE OF PERFORMANCE. ENFINITY ROOFS LLC will be excused from performance hereunder or otherwise if performance is prevented or delayed due to acts of God, war, terrorism, riot, fire, labor trouble (including strikes, lockouts and labor shortages), 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, unavailability or shortage of fuel products, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or other causes beyond ENFINITY ROOFS LLC’s reasonable control. Without limiting the generality of the foregoing, ENFINITY ROOFS LLC will be excused for any delay or failure to perform as a result of any epidemic or pandemic threats and guidelines and advisories in respect thereto, whether recommended by the World Health Organization, the Centers for Disease Control, the Public Health Agency of Canada, or any governmental or local health authority having jurisdiction, pursuant to which ENFINITY ROOFS LLC determines to suspend all or a part of its operations for the health and safety of its employees, contractors or the community at large. In any such event, ENFINITY ROOFS LLC may, without liability, allocate and distribute the Goods among its customers in such proportions, including to the exclusion of some customers such as Buyer, as ENFINITY ROOFS LLC, in its sole discretion, determines.

1. SECURITY INTEREST. ENFINITY ROOFS LLC reserves and Buyer grants to ENFINITY ROOFS LLC a purchase money security interest in all Goods sold and any cash receivables or cash from resale thereof to secure the full payment and performance by Buyer of its liabilities and obligations to ENFINITY ROOFS LLC. 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 ENFINITY ROOFS LLC; (b) Buyer threatens, appears to or ceases to carry on its business or substantially changes the nature of its business, all as determined by ENFINITY ROOFS LLC 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, which are not diligently contested by Buyer and are not dismissed or cancelled within twenty-one (21) days from the day on which they are instituted; (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; or (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. Buyer acknowledges that this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such documents as ENFINITY ROOFS LLC may request in order to perfect its security interest.

1. WARRANTY. UNLESS THE GOODS ARE SUBJECT TO AN EXPRESS LIMITED WARRANTY OR FULL OTHER WARRANTY PROVIDED BY ENFINITY ROOFS LLC AS SET FORTH ON ENFINITY ROOFS LLC’S WEBSITE (enfinityroofs.com), THE GOODS ARE SOLD “AS IS, WITH ALL FAULTS”, WITHOUT RECOURSE, AND ENFINITY ROOFS LLC DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY CONDITIONS OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PRIVATE LABEL GOODS, GOODS DESCRIBED AS “SECONDS”, “ECONOMY”, “DAMAGED”, “OFF-GRADE”, AND OTHER SIMILAR DESIGNATIONS ARE DEEMED TO BE SOLD “AS IS, WITH ALL FAULTS”.

1. LIMITATION OF REMEDY AND LIABILITY. IF THE GOODS ARE SUBJECT TO A LIMITED WARRANTY OR OTHER WARRANTY PROVIDED BY ENFINITY ROOFS LLC AS SET FORTH ON ENFINITY ROOFS LLC’S WEBSITE (enfinityroofs.com/), THE SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY NATURE ARISING FROM THE FAILURE OF THE GOODS TO CONFORM TO THE APPLICABLE WARRANTY SHALL BE LIMITED TO THE REMEDY SPECIFIED IN THE APPLICABLE WARRANTY. UNLESS OTHERWISE EXPLICITLY SET FORTH IN AN APPLICABLE LIMITED WARRANTY OR OTHER WARRANTY, IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL ENFINITY ROOFS LLC’S CUMULATIVE LIABILITY EXCEED THE PURCHASE PRICE FOR THE SPECIFIC GOODS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. ENFINITY ROOFS LLC SHALL NOT IN ANY EVENT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. BUYER AGREES THAT IN NO EVENT SHALL ENFINITY ROOFS LLC’S LIABILITY TO BUYER INCLUDE INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, COST FOR LABOR, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, AND COST OF CAPITAL.

1. REJECTION OF NON-CONFORMING GOODS. Unless otherwise set forth in an express limited warranty or other warranty provided by ENFINITY ROOFS LLC for the applicable Goods as set forth on ENFINITY ROOFS LLC’s website (enfinityroofs.com), rejection of non-conforming Goods must be made by Buyer in writing within ten (10) days of receipt, and all defects ascertainable at the time of giving notice shall be stated with particularity or deemed waived. In the event of any complaint, shipment shall be held intact, and specification of objections, accompanied by tally of objectionable Goods, shall be submitted directly to ENFINITY ROOFS LLC. If requested by ENFINITY ROOFS LLC, Buyer shall provide a requested sample of the purported non-conforming Goods, at Buyer’s expense. If full credit is allowed by ENFINITY ROOFS LLC for non-conforming goods and unless otherwise set forth in a limited warranty or other warranty provided by ENFINITY ROOFS LLC as set forth on ENFINITY ROOFS LLC’s website (enfinityroofs.com/na/residential/building-professional/usa-warranties), the Goods must be retained intact at the delivery point, and ENFINITY ROOFS LLC shall have 90 days from the date of such allowance to dispose of such Goods as it determines. Under no circumstances are Goods to be returned to ENFINITY ROOFS LLC unless Buyer has written permission of ENFINITY ROOFS LLC’s Plant Manager and Director of Sales to do so. A claim that Goods are non-conforming or any other claim shall not entitle Buyer to deduct any sum from any invoice unless such claim and deduction has been allowed and acknowledged by ENFINITY ROOFS LLC in writing. Invoices shall be paid in full in accordance with the Price Lists, and, in the event of subsequent allowance by ENFINITY ROOFS LLC of any claim, ENFINITY ROOFS LLC shall promptly make payment to Buyer for the amount so allowed.

1. RETURN OF GOODS. Return of Goods other than pursuant to Section 9 shall require the prior written approval of ENFINITY ROOFS LLC’s Plant Manager and Director of Sales, or alternatively, ENFINITY ROOFS LLC’s Controller. In no event will returns be accepted after ninety (90) days from the delivery date. Goods pre-approved for return will be subject to restocking, reconditioning, repackaging and freight charges, all as set forth in the Price Lists.

1. FURTHER HANDLING. Buyer shall indemnify, defend and hold harmless ENFINITY ROOFS LLC, its affiliates and their respective officers, directors, managers, employees, representatives and agents from and against, any and all claims, losses, liabilities, costs and expenses (including attorneys’ fees) arising out of or resulting from the use, handling, manufacture, processing, alteration, distribution, sale or marketing of the Goods, or any other action or inaction with regard to the Goods, in each case after the delivery thereof to Buyer; provided however, that Buyer shall not be liable to ENFINITY ROOFS LLC for damages directly caused by the sole negligence of ENFINITY ROOFS LLC or by ENFINITY ROOFS LLC’s breach of ENFINITY ROOFS LLC’s applicable written limited or other warranty set forth at enfinityroofs.com or provided upon request.

1. EXPORT CONTROL REGULATIONS. All Goods sold by ENFINITY ROOFS LLC are subject to the export control laws of the United States of America, and Buyer agrees not to divert or resell the Goods contrary to such laws. If any license or consent of any government or other authority is required for the acquisition, carriage or use of product by Buyer, Buyer will obtain the same at its expense and provide evidence of the same to ENFINITY ROOFS LLC on request. Failure to do so will entitle ENFINITY ROOFS LLC to withhold or delay shipment, but failure to do so will not entitle Buyer to withhold or delay payment of the price therefor. Any expenses or charges incurred by ENFINITY ROOFS LLC resulting from such failure will be paid for by Buyer within ten (10) days of receipt of ENFINITY ROOFS LLC’s written request.

1. GOVERNING LAW; SEVERABILITY. These Terms and Conditions of Sale shall be governed by the laws of the State of Delaware, without reference to the choice of law, conflicts of law, or principles of any other state or country which might otherwise be applied. 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. Without limiting the generality of the foregoing, some states may not allow an exclusion of certain implied warranties or conditions or limitation of certain incidental, consequential or other damages. In such an event, Sections 7 and 8 shall be construed to the greatest extent permissible to implement the purpose of these Terms and Conditions of Sale.

1. MISCELLANEOUS. 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 its rights or obligations under these Terms and Conditions of Sale without ENFINITY ROOFS LLC’s prior written consent, which may be withheld for any reason in ENFINITY ROOFS LLC’s sole discretion. Any assignment by Buyer except as permitted herein shall be null and void. Unless otherwise explicitly set forth in the applicable warranty, 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 ENFINITY ROOFS LLC will be valid unless the same is in writing and signed by such officer. ENFINITY ROOFS LLC 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 ENFINITY ROOFS LLC website (enfinityroofs.com/na). The current version of these Terms and Conditions of Sale and any modifications or amendments supersede all prior versions of these Terms and Conditions of Sale. The most current version of these Terms and Conditions of Sale may be found at the ENFINITY ROOFS LLC website (enfinityroofs.com and is also available upon request.