Home Terms of Sale Click here for E-Commerce Terms of Sale (US) Click here for Canadian Terms of Sale Click here for E-Commerce Terms of Sale (Canada) Terms Of Sale in the US TERMS & CONDITIONS The following terms and conditions apply to this sales order. AGREEMENT. By ordering or accepting the products described herein. Buyer agrees to the terms and conditions set forth herein and in any attachments hereto, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms in Buyer’s acknowledgement, purchase order or other document of Buyer are hereby rejected, notwithstanding Seller’s act of shipping products or similar act of Seller. These terms and conditions, together with those appearing on the face of this form, shall constitute the complete and exclusive statement of all the terms of the agreement between Seller and Buyer unless different, contradictory or additional terms and conditions are agreed to in a writing signed by authorized representatives of both parties. In no event shall this invoice be deemed an acceptance by Seller of any terms and conditions included with Buyer’s purchase order or similar Buyer document, and Seller’s performance hereunder is expressly conditioned on Buyer’s assent to these terms and conditions of sale. Acceptance of orders, and deliveries thereunder, are at all times subject to the approval of Seller’s Chief Financial Officer. TERMS OF PAYMENT. Invoices are issued as of the date of delivery covering deliveries from our stocks and as of the date of shipment covering direct mail shipments and are due and payable in lawful money, upon the issuance thereof, unless otherwise specifically agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval of Seller’s Credit Department, and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Seller’s Credit Department. DELIVERY AND TRANSFER OF TITLE. Unless Buyer takes possession of the products at one of Seller’s stores, products shall be shipped F.O.B. Origins, Seller’s shipping dock, freight pre-paid by Seller and added to the invoice. All title and risk of loss or damage in respect to the products shipped hereunder shall pass to Buyer on delivery to the first common carrier. For products picked up at one of Seller’s stores, title and risk or loss or damage transfers when Buyer takes possession of the products. Products are deemed accepted by Buyer either upon delivery to the carrier or when Buyer takes possession of the products at one of Seller’s stores, whichever is applicable. Buyer is responsible for payment of all costs relating to transportation, delivery and insurance. Buyer will be responsible for filing claims relating to any lost or damaged products. LATE FEE. All unpaid items will be charged a 1-1/2% per month late fee beginning the second month following delivery of shipment, such charge not to exceed the maximum charge permitted by law. FORCE MAJEURE. Seller shall not be liable to Buyer for any alleged loss or damage resulting from Seller’s failure to deliver products, or delay in making shipments, or resulting from acts of Buyer, fire, explosion, flood, earth-quake, war, riots, acts of terror, insurrection, civil disturbance, accident, storm, interruption or delay of transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Seller’s reasonable control. BUYER’S DUTY TO INSPECT. Buyer must promptly inspect all shipped products for shortages, conformity with Buyer’s purchase order, if any, and defects. If products appear not to conform to Buyer’s purchase order, if any, or to be defective upon receipt, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the same. Claims for shortage or deductions for erroneous charges must be presented within fifteen (15) days after receipt of the products or they will not be allowed. Products may be returned to Seller only with Seller’s prior authorization, and only for repair of non-conformance or defect found upon receipt, due to shipment error by Seller or under warranty (see below). PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All products are produced subject to (i) mill tolerances and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions and quality; (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods and (iii) regular mill practices with respect to over and under shipments. Any representations, warranties or certifications by Seller shall be limited by the foregoing. LIMITED WARRANTY; OBTAINING WARRANTY SERVICE; WARRANTIES EXCLUSIVE. (a) Seller warrants to Buyer only that the products will substantially conform to mill tolerances and the written specifications therefor, for fifteen (15) days from date of shipment or the date Buyer takes possession of the products at one of Seller’s stores, whichever is applicable. If any sample or model was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of products and not to represent that the products sold would strictly conform to the sample or model. Seller’s sole obligation under this express limited warranty shall be, at Seller’s option and expense, to repair the non-conforming product, deliver to Buyer an equivalent product to replace the nonconforming item, or if neither of the two foregoing options is reasonably available, Seller may, in its sole discretion, refund to Buyer, or credit to Buyer, the purchase price paid for the non-conforming product. SELLER SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED NONCONFORMITY IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY BUYER’S OR ANY THIRD PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY THE PRODUCT, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OTHER HAZARDS OR ACTS OF GOD. (b) TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. LIMITATION OF LIABILITY. (a) SELLER WILL NOT HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, WORK STOPPAGE OR DELAY, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS INVOICE OR OTHERWISE OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. (b) SELLER’S MAXIMUM LIABILITY TO BUYER FOR DAMAGES HEREUNDER, IF ANY, SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM. (c) Some countries or states do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to you. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This warranty gives you specific legal rights which may vary depending on local law. ENFORCEMENT OF TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any provision of these terms and conditions or to exercise any right arising from any default of Buyer hereunder shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a waiver of Seller’s rights to act or to enforce each and every such provision. Seller’s exercise of any right or remedy provided in these terms and conditions shall be without prejudice to Seller’s right to exercise any other right or remedy provided by law or equity DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer further shipments until such payments are made, or may, at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished, and, at Seller’s option, to cancel the order. PRICES; TAXES. The prices paid by Buyer shall be that stated on the face of this form. All prices are in U.S. dollars. The prices stated do not include taxes, duties, tariffs and other similar charges. Buyer is responsible for, and shall pay or reimburse Seller for, all taxes, including sales, use, gross receipts, excise, personal property, goods and services, value added, commodity or other federal, state or local taxes based on the sale to Buyer of the products, excluding taxes on Seller’s net worth and net income. Any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller on demand. CONFLICT WITH APPLICABLE LAW: SEVERABILITY. No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions, and the effect thereof shall be confined to the provision as to which such adjudication is made. ENTIRE AGREEMENT. These terms and conditions, together with any attached specifications and drawings, constitute the entire final written agreement between the parties, and are a complete and exclusive statement of all the terms of such agreement. ASSIGNMENT. Neither party may assign its rights or delegate its obligations hereunder without the prior written consent of the other, except that Seller may assign its rights and delegate its obligations hereunder to any subsidiary or affiliate or in connection with a merger, acquisition, spin-out or other transfer of all or substantially all of the business, stock or assets of Seller to which these terms and conditions relate. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, these terms and conditions are binding upon, inure to the benefit of, and are enforceable by the parties hereto and their respective successors and permitted assigns. GOVERNING LAW. These terms and conditions shall be construed in accordance with the laws of the State of Delaware without the application of the conflicts of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (1980) to these terms and conditions is hereby excluded. Terms Of Sale in the US (E-Commerce) TERMS & CONDITIONS The following terms and conditions apply to this and any sales order transacted online at “metalsupermarkets.com” (i.e., the “Metal Supermarkets E-Commerce Website” or the “E-comm Site”), processed in the United States, facilitated by Metal Supermarkets Franchising America Inc., any of its affiliates, and the licensed franchisees of Metal Supermarkets stores, (i.e., individually and in aggregate, the “Seller”), where the “Managing Agent” is Metal Supermarkets Franchising America Inc. or any of its affiliates but specifically is not the franchisees of the Metal Supermarkets franchise system, inclusive of its owners, agents, employees, or otherwise. AGREEMENT. By ordering or accepting the products, services, or both (in aggregate or individually, the “Materials”) described herein, the party acquiring the Seller’s Materials, (i.e., “the Buyer”) being the Buyer, agrees to the terms and conditions set forth herein, inclusive of any attachments hereto, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms in Buyer’s acknowledgement, purchase order or other document of Buyer are hereby rejected, notwithstanding Seller’s act of shipping Materials or similar act of Seller. These terms and conditions, together with those appearing on the face of this form, shall constitute the complete and exclusive statement of all the terms of the agreement between Seller and Buyer unless different, contradictory or additional terms and conditions are agreed to in a writing signed by authorized representatives of Buyer and the Managing Agent. In no event shall the applicable sales order or invoice be deemed an acceptance by Seller of any terms and conditions included with Buyer’s purchase order or similar Buyer document, and Seller’s performance hereunder is expressly conditioned on Buyer’s assent to these terms and conditions of sale. Acceptance of orders, and deliveries thereunder, are at all times subject to the approval of Managing Agent’s Chief Financial Officer. TERMS OF PAYMENT, Cancellations, Returns, and Shipping. Terms of Payment. For orders placed at the E-Comm Site, invoices are issued at the time that the order is placed and are immediately due and payable in lawful money, unless otherwise specifically agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval of Managing Agent’s Credit Department, and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Managing Agent’s Credit Department. Cancellation Policy. A Buyer must provide the Managing Agent with a written request at [email protected] for the cancellation, modification, or shipment deferral of any accepted order. The Managing Agent, on behalf of the Seller, at its sole discretion, may consent in writing to a Buyer’s request for cancellation, modification, or shipment deferral, or alternatively, the Managing Agent may elect not to consent to the request. However, the Managing Agent reserves the right to charge a cancellation, modification or deferral fee, and the Managing Agent further reserves the right to collect this fee in advance of any further action relative to any order of the Buyer or any adjustment thereof. Return Policy. A Buyer must provide the Managing Agent with a written request at [email protected] to gain the Managing Agent’s approval of the return of any Materials from an accepted order. The Managing Agent, on behalf of the Seller, and at its sole discretion, may consent in writing to the Buyer’s request to accept a return, or alternatively, the Managing Agent may elect not to consent to the request. However, the Seller reserves the right to charge a restocking fee at an amount it so determines in the instances where a return is approved. The Managing Agent may collect this restocking fee as a deposit collected in advance of any further action. A general description of the Return Policy, which is subject to and affords priority to these Terms of Sale, may be found at https://www.metalsupermarkets.com/return-policy/ This policy may be changed, at the Managing Agent’s discretion, from time to time. The means by which the Buyer gains possession of the order is generally determined at the Seller’s discretion as further described under Metal Supermarkets’ E-Commerce Policy for Pick-Up, Delivery, or Shipping of Materials, a policy which may be changed, at the Seller’s discretion, from time to time. https://www.metalsupermarkets.com/shipping-policy/ DELIVERY AND TRANSFER OF TITLE. Unless Buyer takes possession of the Materials at one of Seller’s stores, Materials shall be shipped F.O.B. Origins, Seller’s shipping dock, freight pre-paid by Seller and added to the invoice. All title and risk of loss or damage in respect to the Materials shipped hereunder shall pass to Buyer on delivery to the first common carrier, (i.e., a third-party who may be selected by either the Seller or Buyer). For Materials picked up at one of Seller’s stores, or for Materials delivered by trucks staffed by the Seller, title and risk or loss or damage transfers when Buyer takes possession of the Materials. Materials are deemed accepted by the Buyer either upon delivery to the carrier, when Buyer takes possession of the Materials at one of Seller’s stores, or once the Material is delivered by trucks staffed by the Seller, whichever is applicable. Relative to shipping by a common carrier, the Buyer is responsible for payment of all costs relating to transportation, delivery and insurance. Notwithstanding the transfer of title referenced herein, the Seller will assist the Buyer by filing claims relating to any lost or damaged Materials. LATE FEE. As e-commerce sales are paid in advance, at the initiation of the order, all unpaid items will be charged a 1-1/2% per month late fee from date of invoice, such charge not to exceed the maximum charge permitted by law. FORCE MAJEURE. Seller shall not be liable to Buyer for any alleged loss or damage resulting from Seller’s failure to deliver Materials, delay in making shipments, or resulting from acts of Buyer, fire, explosion, flood, earth-quake, war, riots, acts of terror, insurrection, civil disturbance, accident, storm, interruption or delay of transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Seller’s reasonable control. BUYER’S DUTY TO INSPECT. Buyer must promptly inspect all shipped Materials for shortages, conformity with Buyer’s purchase order, if any, and defects. If Materials appear not to conform to Buyer’s purchase order, if any, or to be defective upon receipt, Buyer shall discontinue their use and immediately notify Seller at [email protected] of such condition and afford Seller a reasonable opportunity to inspect the same. Claims for shortage or deductions for erroneous charges must be presented within five (5) days after receipt of the Materials or they will not be allowed. Materials may be returned to Seller only with Seller’s prior authorization, and only for repair of non-conformance or defect found upon receipt, due to shipment error by Seller or under warranty (see below). PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All Materials are provided subject to (i) mill tolerances and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions and quality; and (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods. Any representations, warranties or certifications by Seller shall be limited by the foregoing. Any services provided by Seller, inclusive of cutting and shearing, shall be provided at industry standard, recognizing that there will be some variance relative to dimensions, weight, straightness, and otherwise, but the accepted deviation will not exceed minus (-) 0.00 inches and plus (+) 0.125 inches. LIMITED WARRANTY; OBTAINING WARRANTY SERVICE; WARRANTIES EXCLUSIVE. (a) Seller warrants to Buyer only that the Materials will substantially conform to Section 7 and the written specifications therefor, for five (5) days from date of shipment or the date Buyer takes possession of the Materials at one of Seller’s stores, whichever is applicable. If any sample or model was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of Materials and not to represent that the Materials sold would strictly conform to the sample or model. Seller’s sole obligation under this express limited warranty shall be, at Seller’s option and expense, to repair the non-conforming product, deliver to Buyer an equivalent product to replace the nonconforming item, or if neither of the two foregoing options is reasonably available, Seller may, in its sole discretion, refund to Buyer, or credit to Buyer, the purchase price paid for the non-conforming product. SELLER SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED NONCONFORMITY IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY BUYER’S OR ANY THIRD PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY THE PRODUCT, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OTHER HAZARDS OR ACTS OF GOD. (b) TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN THE INSTANCE THAT THE OPERATION OF LAW PREVENTS THE EXCLUSION OF IMPLIED WARRANTIES AS PROVIDED, ANY IMPLIED WARRANTY IS APPLICABLE ONLY FOR THE DURATION OF THE APPLICABLE WRITTEN WARRANTY. LIMITATION OF LIABILITY. (a) SELLER WILL NOT HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, WORK STOPPAGE OR DELAY, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS INVOICE OR OTHERWISE OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. (b) SELLER’S MAXIMUM LIABILITY TO BUYER FOR DAMAGES HEREUNDER, IF ANY, SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM. (c) Some countries or states do not allow the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to you. ENFORCEMENT OF TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any provision of these terms and conditions or to exercise any right arising from any default of Buyer hereunder shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a waiver of Seller’s rights to act or to enforce each and every such provision. Seller’s exercise of any right or remedy provided in these terms and conditions shall be without prejudice to Seller’s right to exercise any other right or remedy provided by law or equity. DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer further shipments until such payments are made, or may, at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished, and, at Seller’s option, to cancel the order. PRICES; TAXES. The prices paid by Buyer shall be that stated on the face of the order or invoice All prices are in U.S. dollars. The prices stated do not include taxes, duties, tariffs and other similar charges. Buyer is responsible for, and shall pay or reimburse Seller for, all taxes, including sales, use, gross receipts, excise, personal property, goods and services, value added, commodity or other federal, state or local taxes based on the sale to Buyer of the Materials, excluding taxes on Seller’s net worth and net income. Any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Materials covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller on demand. CONFLICT WITH APPLICABLE LAW: SEVERABILITY. No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions, and the effect thereof shall be confined to the provision as to which such adjudication is made. ENTIRE AGREEMENT. These terms and conditions, together with any attached specifications and drawings, constitute the entire agreement between the parties, and are a complete and exclusive statement of all the terms of such agreement. ASSIGNMENT. Neither party may assign its rights or delegate its obligations hereunder without the prior written consent of the other, except that Seller may assign its rights and delegate its obligations hereunder to any subsidiary, affiliate, licensed franchisee of Metal Supermarkets stores or in connection with a merger, acquisition, spin-out or other transfer of all or substantially all of the business, stock or assets of Seller to which these terms and conditions relate. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, these terms and conditions are binding upon, inure to the benefit of, and are enforceable by the parties hereto and their respective successors and permitted assigns. GOVERNING LAW. These terms and conditions shall be construed in accordance with the laws of the State of Delaware without the application of the conflicts of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (1980) to these terms and conditions is hereby excluded. Terms Of Sale in Canada TERMS & CONDITIONS The following terms and conditions apply to this sales order. AGREEMENT. By ordering or accepting the goods described herein. Buyer agrees to the terms and conditions set forth herein and in any attachments hereto, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms in Buyer’s acknowledgement, purchase order or other document of Buyer are hereby rejected, notwithstanding any terms or conditions that may be contained in such acknowledgement, purchase order or other document of Buyer and notwithstanding Seller’s act of shipping goods or similar act of Seller. If this offer shall be deemed an acceptance of a prior offer by Seller, such acceptance is expressly conditioned on Seller’s written assent to any additional or different items contained herein. Acceptance of orders, and deliveries thereunder, are at all times subject to the approval of Seller’s Chief Financial Officer. TERMS OF PAYMENT. Invoices are issued as of the date of delivery covering deliveries from our stocks and as of the date of shipment covering direct mail shipments are due and payable in lawful money, upon the issuance thereof unless otherwise specifically agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval of Seller’s Credit Department, and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Seller’s Credit Department. TITLE. Except on goods sold pursuant to a conditional sales contract, all goods delivered from Seller’s stock, on any sale resulting from this quotation shall be complete, and title shall pass upon actual delivery at the place where the Buyer received possession of the goods, and on all direct mail shipments shall be complete, and title shall pass at the place from which shipment is made. LATE PENALTY. All unpaid items will be charged a 1-1/2% per month late penalty beginning the second month following delivery of shipment, such charge not to exceed the maximum charge permitted by law. FORCE MAJEURE. Failure of Seller to deliver hereunder, or delay in making shipments, if occasioned by fire, explosion, flood, earth-quake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay of transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Seller’s control shall not subject Seller to any liability to Buyer. BUYER’S DUTY TO INSPECT. Buyer must immediately inspect all material for shortages, conformity with order and defects. If goods appear not to conform to the contract between Buyer and Seller, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the same. Claims for shortage or deductions for erroneous charges must be presented within fifteen (15) days after receipt of the goods or they will not be allowed. No material will be taken back and credited or replaced unless arrangements for return have been made with Seller. Seller may, at its option, replace those products proven defective or allow credit for an amount not exceeding the sum of the original purchase price thereof. PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All products are produced subject to (i) mill tolerances and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions, and quality; (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods and (iii) regular mill practices with respect to over and under shipments. Any representations or certifications by Seller shall be limited by the foregoing. DISCLAIMER OF WARRANTIES. Seller warrants only that the goods are as described herein, but no other express warranty is made if any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of goods and not to represent that the goods would necessarily conform to the sample or model. THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE BUYER “AS IS” AND “WITH ALL FAULTS” AND SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOST GOODWILL, LOST SALES OR PROFITS, WORK STOPPAGE, DELAY, PRODUCT FAILURE, IMPAIRMENT OF GOODS OR OTHERWISE AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, and in any case, Seller’s liability for any and all losses and damages sustained by Buyer and others rising out of or by reason of this contract shall not exceed the original purchase price of the products upon which liability is founded. ENFORCEMENT of TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any provision of these terms and conditions or to exercise any right arising from any default of Buyer hereunder shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a waiver of Seller’s rights to act or to enforce each and every such provision. DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer further shipments until such payments are made, or may, at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished, and, at Seller’s option, to cancel the order. PRICES; TAXES. Prices for the materials or services covered herein, whether herein named or heretofore quoted or proposed, shall be adjusted to our prices in effect at the time of shipment. Unless otherwise indicated, prices are exclusive of all Provincial and Federal sales tax. Any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption, of any of the materials covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof Seller upon demanding. CONFLICT WITH APPLICABLE LAW: SEVERABILITY. No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions and the effect thereof shall be confined to the provision as to which such adjudication is made. MODIFICATION. No agreement or understanding in any way, modifying the conditions of this order shall be binding upon Seller unless made in writing and approved by Seller. Extras will be paid for only on the prior written order of Seller. ENTIRE AGREEMENT. This order together with any attached specifications and drawings, constitutes the entire final written agreement between the parties and is a complete and exclusive statement of all the terms of such agreement. ASSIGNMENT. This order and Buyer’s duties hereunder may not be delegated or assigned by Buyer without Seller’s written consent, and any assignment attempted without such consent shall be null and void and shall effect, at Seller’s option a cancellation of Seller’s obligations hereunder. Seller may assign this order and its interest therein to any affiliated corporation, or to any corporation succeeding to Seller’s business without the consent of Buyer. INTERPRETATION. This order shall be construed according to laws of the Province where the sale originated. Terms Of Sale in Canada (E-Commerce) The following terms and conditions (these “Terms”) apply to this and any sales order transacted online at “metalsupermarkets.com” (i.e., the “Metal Supermarkets E-Commerce Website” or the “E-comm Site”), processed in Canada, facilitated by Metal Supermarkets Franchising America Inc., any of its affiliates, and the licensed franchisees of Metal Supermarkets stores, (individually and in the aggregate, the “Seller”), where the “Managing Agent” is Metal Supermarkets Franchising America Inc. or any of its affiliates but specifically is not any franchisee of the Metal Supermarkets franchise system, inclusive of their owners, agents, employees, or otherwise. Agreement. By placing an order for products, services or both (in the aggregate or individually, the “Materials”) from this website, the party acquiring the Seller’s Materials, (the “Buyer”) being the Buyer, agrees to the terms and conditions set forth herein, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Managing Agent and delivered to Buyer. The Buyer affirms that they are of legal age to enter into this agreement. The Buyer further affirms that if they place an order on behalf of an organization or company, they possess, at all relevant times, the legal authority to bind any such organization or company to these terms and conditions. The Buyer may not order or obtain Materials from this website if the Buyer: (i) does not agree to these terms and conditions; (ii) is not the age of majority in their province or territory of residence; or (iii) is prohibited from accessing or using this website or any of this website’s contents, Materials by applicable law. These Terms are subject to change by the Managing Agent without prior written notice at any time and with immediate effect, in its sole discretion. The Terms applicable to the Buyer will be those the Terms posted on the E-comm Site on the day of the applicable purchase. The Buyer should review these Terms before purchasing any Materials that are available through this Site. These Terms are an integral part of the Website Terms and Conditions of Use that apply generally to the use of our Site. You should also carefully review our Website Privacy Policy before placing an order for Materials through this E-comm Site. Terms of Payment, Cancellations, and Returns (a) Prices All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for Materials will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for packaging, shipping and handling. All such taxes and charges will be added to your total price and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. (b) Prices; Taxes. The price paid by the Buyer shall be that stated on the face of the order or invoice. All prices are in Canadian Dollars. The prices stated do not include taxes, duties, tariffs and other similar charges. The Buyer is responsible for, and shall pay or reimburse the Seller for, all taxes, including sales, import, use, gross receipts, excise, personal property, goods and services, value added, commodity or other federal, provincial or local taxes based on the sale to the Buyer of the Materials, excluding taxes on the Seller’s net worth and income. Any taxes which the Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of the Materials covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer and the Buyer shall promptly pay the amount thereof to the Seller on demand. (c) Terms of Payment. For orders placed on the E-Comm Site, invoices are issued at the time the order is placed and are immediately due and payable in the payment form permitted at checkout, unless otherwise agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval by the Managing Agent’s Credit Department, and the Seller may at any time decline to make shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Managing Agent’s Credit Department. (d) Late Fee. As, subject to (c) above, Material sales are paid in advance, at the initiation of the order, all unpaid items will be charged at 1.5% per month late fee from the date of the invoice, such charge not to exceed the maximum charge permitted by law. (e) Cancellation. The Buyer agrees that their order is an offer to buy, under these Terms, all Materials listed in your order. All such offers to buy must be accepted by the Managing Agent or the Seller will not be obligated to fulfill the offer to buy and sell the Materials to the Buyer. The Buyer must provide the Managing Agent with a written request at [email protected] for the cancellation, modification, or shipment deferral of any accepted order. The Managing Agent, on behalf of the Seller, at its sole discretion, may consent in writing to the Buyer’s request for cancellation, modification, or shipment deferral, or alternatively, the Managing Agent may elect not to consent to the request. However, the Managing Agent reserves the right to charge a cancellation, modification or deferral fee, and the Managing Agent further reserves the right to collect this fee in advance of any further action relative to any order of the Buyer or any adjustment thereof. (f) Returns and Refunds. A Buyer must provide the Managing Agent with a written request at [email protected] to gain the Managing Agent’s approval of the return of any Materials. The Managing Agent, on behalf of the Seller, and at its sole discretion, may consent in writing to the Buyer’s request to return, or alternatively, the Managing Agent may elect not to consent to the request. However, the Seller reserves the right to charge a restocking fee at an amount it so determines in the instance where a return is approved. The Managing Agent may collect this restocking fee as a deposit collected in advance of any further action. A general description of the Return Policy, which is subject to and affords priority to these Terms, may be found at https://www.metalsupermarkets.com/return-policy/ This policy may be changed, at the Managing Agent’s discretion, from time-to-time. Shipments; Delivery; Title and Risk of Loss. Unless the Buyer takes possession of the Materials at one of the Seller’s stores, Materials shall be shipped Freight on Board Origins, Seller’s shipping dock, freight pre-paid by the Seller and added to the invoice. All title and risk of loss or damage in respect to the Materials shipped hereunder shall pass to the Buyer on delivery to the common carrier, (i.e. a third-party who may be selected by either the Seller or the Buyer). For Materials picked up at one of the Seller’s stores, or for Materials delivered by trucks staffed by the Seller, title and risk of loss or damage transfers when the Buyer takes possession of the materials at one of the Seller’s stores, or once the Material is delivered by trucks staffed by the Seller, whichever is applicable. Relative to shipping by a common carrier, the Buyer is responsible for the payment of all costs relating to transportation, delivery and, if offered and available, insurance. Notwithstanding the transfer of title referenced herein, the Seller will on request provide reasonable assistance to the Buyer by filing claims relating to any lost or damaged Materials. Buyer’s Duty to Inspect. The Buyer must properly inspect all shipped Materials for shortages, conformity with the Buyer’s order, and defects (collectively “Defective”). If Materials appear to be Defective upon receipt, the Buyer shall discontinue the use of the Materials, immediately notify the Managing Agent at [email protected] of such condition, and afford the Managing Agent a reasonable opportunity to inspect same. Defective claims must be presented to the Managing Agent within five (5) days of receipt of the Materials or they will void. Materials may be returned to Seller only with Managing Agent’s prior authorization, and only for repair of non-conformance or defect found upon receipt, due to shipment errors by Seller or under warranty (see below). Permissible Variations, Standards and Tolerances. (a) All materials are provided subject to (i) mill tolerance and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions and quality; and (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods. Any representations, warranties or certifications by Seller shall be limited by the foregoing. (b) Any services provided by Seller, inclusive of cutting and shearing, shall be provided at industry standard, recognizing that there will be some variance relative to dimension, weight, straightness, and otherwise, but the accepted deviations will not exceed minus (-) 0.00 inches and plus (+) 0.125 inches. LIMITED WARRANTY; OBTAINING WARRANTY SERVICE; WARRANTIES EXCLUSIVE. (a) Seller warrants to the Buyer only that the Materials will substantially conform to Section 5 and the written specifications therefor, for five (5) days from date of shipment or the date the Buyer takes possession of the Materials at one of the Seller’s stores, whichever is applicable. If any sample or model was shown to the Buyer, such model or sample was used merely to illustrate the general type and quality of Materials and not to represent that the Materials sold would strictly conform to the sample or model. The Seller’s sole obligation under this express limited warranty shall be, at the Seller’s option and expense, to repair the non-conforming product, deliver to the Buyer an equivalent product to replace the nonconforming item, or if neither of the two foregoing options is reasonably available, the Seller may, in its sole discretion, refund to the Buyer, or credit to the Buyer, the purchase price paid for the non-conforming product. THE SELLER SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED NONCONFORMITY IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY THE BUYER’S OR ANY THIRD PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY THE PRODUCT, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OTHER HAZARDS OR ACTS OF GOD. (b) TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN THE INSTANCE THAT THE OPERATION OF LAW PREVENTS THE EXCLUSION OF IMPLIED WARRANTIES AS PROVIDED, ANY IMPLIED WARRANTY IS APPLICABLE ONLY FOR THE DURATION OF THE APPLICABLE WRITTEN WARRANTY. Limitation of Liability. (a) IN NO EVENT SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. (b) THE SELLER’S SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY THE BUYER FOR THE MATERIALS YOU HAVE ORDERED THROUGH THE SITE. Packaging. Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging the Materials on pallets, bulk or individual cartons. Packaging will be standard commercial packaging and acceptable to commercial carriers. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by the Buyer. Goods Not for Resale or Export. You represent and warrant that you are buying products from the Site for your own use only and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within Canada. Privacy. We respect your privacy and are committed to protecting it. Our Website Privacy Policy governs the processing of all personal data collected from you in connection with your purchase of Materials through the Site. Force Majeure. Seller shall not be liable or responsible to the Buyer, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of the obligations set out in these Terms, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, such as the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labour stoppages or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the control of Seller . Managing Agent shall give reasonable notice of the Force Majeure Event to the Buyer, stating the period of time the occurrence is expected to continue. Seller shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Governing Law. All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Assignment. Buyer will not assign any of their rights or delegate any of their obligations under these Terms without the Managing Agent’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of your obligations under these Terms. Managing Agent reserves the right to assign or delegate any of its obligations to its affiliates, Metal Supermarkets franchisees or third-parties for the purpose of fulfilling its obligations under these Terms. No Waivers. The failure or delay by Seller to exercise or enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the Buyer. Notices. (a) To Buyer. Managing Agent may provide any notice to Buyer under these Terms by: (i) sending a message to the email address provided to Managing Agent in the order; or (ii) by posting to the E-comm Site. Notices sent by email will be effective when Managing Agent send the email and notices Managing Agent provides by posting will be effective upon posting. It is the Buyer’s responsibility to keep their email address current. (b) To Seller. To give us notice under these Terms, you must contact us as follows: (i) by email transmission to [email protected]; or (ii) by personal delivery, overnight courier or registered or certified mail to Metal Supermarkets Franchising America Inc. Suite 210-5399 Eglinton Ave. W., Toronto, Ontario, M9C 5K6. Managing Agent may update the email address or address for notices to Seller by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent. Severability. If any provision of these Terms is found to be invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms. Entire Agreement. Seller’s order confirmation, these Terms, our Website Terms and Conditions of Use, Return Policy, and our Website Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.