These Terms and Conditions of Sale (“Terms”) govern the sale of any goods, including roofing membranes, accessories, and other related materials (“Products”) which Kingspan agrees to supply to the Buyer in accordance with these Terms, and as more specifically set out in the Purchase Order.

By issuing a purchase order, accepting a quotation, or taking delivery of Products, Buyer accepts these Terms. Kingspan rejects any different or additional terms in Buyer’s documents. No course of dealing or usage of trade modifies these Terms.

1.      Definitions

In these Terms the following words have the following meanings:

• “Kingspan”:  Kingspan Roofing + Waterproofing, Inc., a Delaware corporation, with its registered address at 4115 N Perkins Rd, Stillwater, Oklahoma, 74075, United States.

• “Buyer”: The person as specified in the Purchase Order, or as otherwise identified by the Parties, who agrees to purchase the Products from Kingspan and to whom Kingspan agrees to sell the Products.

• “Incoterms 2020 rule”: The rules published by the International Chamber of Commerce.

• “Purchase Order”: Buyer’s purchase order or other written commitment referencing a specific quantity of Products and an agreed ship-to location accepted by Kingspan.

2.      Basis of the Sale

2.1             These Terms supersede all prior agreements, proposals, and discussions between the parties with respect to the purchase and sale of the Products other than a written agreement signed by both parties.

2.2             Any additional, inconsistent or different terms or conditions contained in Buyer’s purchase order or other documents submitted 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 are hereby expressly rejected by Kingspan.

3.      Orders and Acceptance

3.1             All Purchase Orders are subject to written acceptance by an authorized representative of Kingspan. Oral statements by Kingspan’s personnel do not bind Kingspan.

3.2             Kingspan may refuse any Purchase Order in whole or in part.

3.3             Buyer shall be responsible to Kingspan for ensuring the accuracy of the information submitted by the Buyer, and for giving Kingspan any further necessary information relating to the Products within a sufficient time.

3.4             Kingspan may correct any typographical, clerical, or other errors or omissions in quotations, Purchase Order acknowledgments, invoices, or other documents without liability to Buyer.

4.      Prices

4.1             Unless otherwise quoted in writing, prices are expressed in U.S. dollars and are exclusive of taxes, duties, and other governmental charges.

4.2             Unless otherwise agreed in writing, the specific delivery terms for each Purchase Order will be stated on the applicable Purchase Order or Delivery Note and will reference the agreed Incoterms® 2020 rule. The responsibilities for delivery, risk transfer, and unloading shall be as allocated under the referenced Incoterms® 2020 rule.

4.3             Kingspan may adjust prices at any time before accepting a Purchase Order to reflect changes in raw material costs, transportation, energy, or other market conditions.

4.4             If shipment is scheduled more than 60 days after Purchase Order acceptance, Kingspan may increase the price by giving written notice to Buyer at least 10 days before shipment.

5.      Taxes and Other Charges

5.1             Buyer is responsible for all sales, use, excise, VAT, customs duties, and similar charges.

5.2             Buyer shall reimburse Kingspan for any such amounts paid or payable by Kingspan unless Buyer provides a valid exemption certificate.

6.      Payment Terms and Credit

6.1             Subject to approved credit, payment is due net thirty (30) calendar days from the date of Kingspan’s invoice. Time of payment is of the essence.

6.2             Past-due balances bear interest at the rate of 1.5% per month (18% per annum) or the maximum lawful rate, whichever is less, accruing daily.

6.3             Kingspan reserves the right to suspend or cancel deliveries of Products if the Buyer is in default of payment.

6.4             Kingspan may, in its sole discretion, modify or withdraw credit terms, require advance payment, or suspend performance if it determines that the Buyer’s financial condition is unsatisfactory.

6.5             Buyer may not set off or withhold any payment due to alleged claims against Kingspan.

6.6             Payment shall not be contingent on Buyer’s receipt of funds from any third party. “Pay when paid” or similar terms are expressly disclaimed and shall not modify Buyer’s obligation to pay per the terms above.

7.      Security Interest, Lien

7.1             Until paid in full, Buyer grants Kingspan a first-priority purchase money security interest and lien in and to the Products and their proceeds.

7.2             Buyer authorizes Kingspan to file financing statements and other filings and to take any actions reasonably necessary to perfect, continue, and enforce such security interest and lien, and shall execute any further documents reasonably requested by Kingspan.

7.3             Kingspan’s rights under this Section are in addition to, and do not limit, any rights to assert construction, mechanic’s, or materialman’s lien rights under applicable law.

8.      Delivery, Title and Risk of Loss

8.1             Unless otherwise agreed in writing, delivery is DAP (Delivered at Place) to the Buyer’s designated address per Incoterms 2020, exclusive of unloading.

8.2             Risk of loss shall pass to the Buyer upon delivery at the designated place, regardless of whether unloading is performed by Kingspan, Buyer, or a third party.

8.3             Title transfers only upon Kingspan’s receipt of full payment for the corresponding Products.

8.4             Delivery dates are estimates; Kingspan is not liable for delay. Partial shipments are permitted and must be paid for as delivered. Delay in delivery of any instalment shall not relieve Buyer of its obligation to accept remaining deliveries.

9.      Inspection and Claims

9.1             Buyer shall inspect Products within ten (10) business days after delivery (“Inspection Period”).

9.2             Buyer must notify Kingspan in writing of any shortage, damage, or non-conformity (“Defect”) within the Inspection Period, describing the Defect in reasonable detail and citing the relevant invoice number.

9.3             Failure to give timely notice constitutes unqualified acceptance. Use or resale of Products constitutes acceptance.

9.4             Buyer shall hold non-conforming Products intact pending Kingspan’s instructions; return is permitted only with Kingspan’s written authorization.

10.   Returns

10.1           Non-confirming Products: With Kingspan’s authorization, Kingspan will either (i) repair, (ii) replace with conforming Products, or (iii) refund the purchase price plus reasonable, pre-approved freight for authorized returns.

10.2           Convenience Returns: Kingspan may, in its discretion, accept unused, resaleable Products within 90 days of shipment, subject to (i) a restocking fee of twenty-five percent (25%) of the original invoice price, (ii) Buyer prepaying freight, and (iii) Kingspan’s confirmation that Products are in original packaging and condition. Custom or made-to-order Products are non-returnable.

10.3           Prior to shipment or completion, Buyer may request changes with respect to the Products to be provided, including, but not limited to, changes in method of shipping or packing, time or place of delivery and increases in delivered quantity. Kingspan will promptly notify Buyer of any resulting increase or decrease in cost and any adjustments to delivery dates. Buyer and Kingspan will agree on any price adjustment before implementing any such change. In the absence of such agreement, Buyer shall have the sole option to withdraw its request for any such change.

11.   Limited Warranty

11.1           Kingspan warrants that for one (1) year from the date of shipment (or such longer period stated in a published written product warranty applicable to specific Products) the Products will (a) conform in all material respects to Kingspan’s published specifications at the time of sale, and (b) be free from material defects in workmanship and materials.

11.2           THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

12.   Warranty Remedy

12.1           Buyer’s sole and exclusive remedy for breach of the warranty in Section 11 is, at Kingspan’s option, (a) repair of the defective Product, (b) replacement with a like quantity of conforming Product, or (c) refund of the purchase price paid for such Product.

12.2           The warranty is void if the Product has been (i) improperly stored, handled, or installed; (ii) modified or altered without Kingspan’s written consent; or (iii) subjected to misuse, abuse, or neglect.

13.   Indemnification

13.1           Buyer shall indemnify, defend, and hold harmless Kingspan, its affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) the Buyer’s breach of these Terms, (b) the Buyer’s use, handling, or resale of the Products, or (c) any negligent or wrongful act or omission of the Buyer.

14.   Limitation of Liability

14.1           IN NO EVENT SHALL KINGSPAN’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE SALE, USE, OR PERFORMANCE OF ANY PRODUCTS EXCEED THE AMOUNT PAID BY BUYER FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM.

14.2           KINGSPAN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR COST OF CAPITAL), WHETHER BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.   Compliance with Laws

15.1           Buyer shall comply with all applicable laws, regulations, and governmental requirements, including export control and anti-corruption laws. Products may be subject to U.S. and other national export control regulations and may not be resold, diverted, or transferred contrary to such laws.

16.   Confidentiality

16.1           Buyer shall keep confidential all non-public, proprietary, or trade secret information disclosed by Kingspan, including pricing, specifications, and product formulations, and shall use such information solely for the purpose of purchasing and using the Products.

17.   Force Majeure

17.1           Kingspan is excused from performance and shall not be liable for any delay or failure to deliver due to causes beyond its reasonable control, including acts of God, fire, flood, pandemic, war, terrorism, labour disputes, raw-material shortages, equipment breakdown, governmental actions, or transportation disruptions (each considered a “Force Majeure Event”).

17.2           Kingspan may allocate supply among its customers during a Force Majeure Event.

18.   Termination / Suspension

18.1           Kingspan may suspend or cancel any Purchase Order, without liability, if (a) Buyer fails to perform any obligation when due, (b) Buyer becomes insolvent or subject to bankruptcy, or (c) Kingspan has reasonable grounds to doubt Buyer’s ability to pay.

19.   Intellectual Property

19.1           Buyer receives no license to use Kingspan’s trademarks or other intellectual property except as expressly authorized in writing.

19.2           Buyer shall not reverse-engineer or disassemble Products.

20.   Assignment

20.1           Buyer may not assign, delegate, or otherwise transfer its rights or obligations under these Terms without Kingspan’s prior written consent. Any attempted assignment in violation of this Section is void.

21.   Dispute Resolution

21.1           The Parties shall first attempt in good faith to resolve any dispute arising out of or relating to these Terms through negotiations between authorized executives.

21.2           If a dispute is not settled within thirty (30) days of written notice of the dispute, the Parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure.

22.   Governing Law and Jurisdiction

22.1           These Terms and all transactions are governed by the internal laws of the State of Delaware, without regard to conflict-of-law rules. The U.N. Convention on Contracts for the International Sale of Goods (CISG) does not apply.

22.2           The state and federal courts located in Delaware shall have exclusive jurisdiction. Buyer consents to such venue and waives any objection.

23.   General

23.1           These Terms, together with the applicable Purchase Order and any Kingspan-issued order acknowledgment or written limited warranty, constitute the entire agreement between the parties regarding the sale of Products and supersede all prior or contemporaneous agreements and communications.

23.2           No amendment or modification is binding unless in a written instrument signed by an authorized representative of Kingspan.

23.3           Kingspan is a member of the group of companies whose holding company is Kingspan Group Plc, having its registered office at Dublin Road, Kingscourt, Co. Cavan, Ireland and accordingly Kingspan may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of Kingspan.

23.4           No waiver by Kingspan of any breach or default is effective unless in writing and signed by an authorized representative of Kingspan.

23.5           A waiver of any breach is not a waiver of any other or subsequent breach.

23.6           If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected thereby.

23.7           Any notice required to be given to the Buyer under these Terms shall be in writing addressed to the Buyer at its registered office or principal place of business or last notified email address.

Any provisions of these Terms which by their nature should survive termination or expiration shall so survive, including, without limitation, provisions relating to payment, confidentiality, intellectual property, indemnification, and limitation of liability.