1. DEFINITIONS.

“Agreement” means the Order and the Terms.

“Buyer” means the entity issuing the Order, and any affiliates, subsidiaries, successors or assigns thereof.

“Deliverable” means any deliverable or other product or result from Services that is referred to in an Order, including without limitation, reports, data, documentation, instruction manuals, and warranty information relating to the Goods, Services, or Specifications (but specifically excluding the Goods themselves).

“Goods” means the goods, materials, and other items required to be delivered by Seller to Buyer pursuant to an Order, including all materials, component parts, packaging, and labeling of such goods.

“IP Rights” means intellectual property rights, including without limitation, all rights in and to, patents, patent applications, trademarks, copyrights, trade secrets, publicity rights, and other intellectual property rights, whether registered or unregistered, and all applications, registrations, renewals and extensions of the same.

“Order” means the purchase order issued by Buyer to Seller for the procurement of Goods and/or Services that incorporates by reference these Terms and Conditions of Purchase.

“Terms” means these Terms and Conditions of Purchase, as may be amended only as expressly and specifically agreed by Buyer in a writing signed by Buyer.

“Seller” means the person or entity to whom the Order is addressed.

“Services” means the services to be performed by Seller, including all goods and materials incorporated therein, as more fully described in the Order and any ancillary documentation expressly incorporated by reference into the Order by Buyer.

“Specifications” means the requirements, attributes, and specifications for the Goods, Services, or Deliverables that are set out in the applicable Order, whether expressly stated or as incorporated by reference. Specifications also include: (a) documentation published by Seller relating to the Goods, Services or Deliverables; (b) operational and technical features and functionality of the Goods, Services or Deliverables; (c) standards or levels of service performance for Services; and (d) Buyer business requirements that are expressly set out in an Order.

“Warranty Period” means with respect to any Goods, Services or Deliverables, the longer of (i) the express written warranty period set forth by Seller in writing and expressly accepted by Buyer in writing for such Goods, Services or Deliverables (a “Written Warranty”), and (ii) a period of four years for Goods and two years for Services and Deliverables, in each case, starting on the date of acceptance by Buyer.

2. OFFER AND ACCEPTANCE; REJECTION OF INCONSISTENT TERMS.
Unless a written supply or services agreement or Written Warranty has been executed by both parties, these Terms and Buyer’s Order together constitute the entire agreement of the parties covering the Goods, Services, and Deliverables provided by Seller to Buyer. For the avoidance of doubt, these Terms and Buyer’s Order constitute an offer and not an acceptance or confirmation of any previous offer or proposal from Seller. Buyer specifically rejects all terms and conditions provided in any proposal or quotation previously provided by Seller. Seller shall be deemed to have accepted this offer and these Terms by (i) Seller’s written acceptance or confirmation of the same, regardless of whether such acceptance or confirmation purports to state additional or different terms from the Terms, or (ii) Seller’s full or partial providing of the Goods, Services or Deliverables hereunder. The Agreement shall consist of (i) these Terms, (ii) the applicable Order, (iii) a Written Warranty, and (iv) Specifications expressly incorporated into the Order by reference. In the event of any conflict between the documents constituting the Agreement, unless otherwise expressly provided in a writing signed by the parties, the order of precedence among such documents shall be as set forth in the previous sentence. Unless agreed to in a writing signed by Buyer, Buyer specifically rejects all terms and conditions provided by Seller not incorporated into the Order by reference. Buyer’s failure to object to any term or condition in any communication from Seller will not be construed as an agreement to such term or condition, nor will it be deemed a waiver of these Terms.

3. PURCHASE PRICE; TERMS OF PAYMENT.
Buyer shall pay the purchase price shown on the face of the Order in accordance with the payment terms set forth thereon. In the absence of payment terms on the face of the Order, payment terms shall be Net 45 days from receipt of invoice. Seller shall submit accurate invoices electronically to Buyer at apinvoices@nationalgypsum.com. As a condition to payment, Buyer may, in its sole discretion, require Seller to furnish an affidavit that all bills for labor and materials have been fully paid and/or a waiver and release of liens from all persons who performed any labor or furnished any materials or equipment in connection with the Goods, Services, or Deliverables.

4. TIME AND MANNER OF DELIVERY OF GOODS.
Unless otherwise stated on the face of the Order, all Goods shipped domestically will be delivered F.O.B (Uniform Commercial Code) Buyer’s location at the street address designated for delivery on the Order and all Goods shipped from outside Canada will be delivered DDP (Incoterms® 2020) Buyer’s location at the street address designated for delivery on the Order. In each case, the title shall not pass until the goods are received and accepted for use by the Buyer.

TIME IS OF THE ESSENCE. If applicable, packages must bear the Seller’s name and the Buyer’s purchase order number, indicate the contents, and show quantity and gross and net weights. Seller shall be responsible for loading Goods for transport and shall inspect all trailers used for bulk shipment prior to loading the Goods to ensure such trailers are free from debris and any other material that may contaminate the Goods or render them unfit for use by Buyer. If Buyer elects, it may determine the transportation method for the Goods and the carrier, upon notice to Seller given a reasonable time prior to shipment.

5. DELIVERY OF SERVICES.
Seller shall complete Services and produce the Deliverables in accordance with the Specifications and agreed-upon timeframes. Unless otherwise stated in the Specifications, Seller will supply all labor, supervision, materials, equipment, tools, documentation, storage, and all other things necessary to complete the Services. Seller represents to Buyer that all personnel used by Seller to provide the Services are properly licensed and trained to perform such work. Title to the Services and related Deliverables and their components, whether completed or a work-in-progress, shall reside in Buyer. For the avoidance of doubt, such title shall specifically include all IP Rights in the instruments of service and all other work product, materials, writings, ideas, and trade secrets made or conceived by Seller in the performance of the Services, or otherwise in connection with this Agreement or which are derived from the use of, or access to, the information supplied by Buyer.

6. CHANGES; TERMINATION.
Buyer may order changes in the Services at any time by written notice to Seller. Additional Services shall be performed only upon Buyer’s written order and after written agreement on the basis for Seller’s compensation. Reductions in the Services shall correspondingly reduce the cost to Buyer. Buyer may, by written notice, cancel or terminate this Order at any time for any reason or for no reason and, in such event, shall pay the Seller that part of the price represented by the Services done to the time of cancellation; no other cancellation costs shall be due or payable to Seller.

7. ACCEPTANCE.
Unless otherwise expressly agreed in a writing signed by Buyer, Buyer will have 30 days to undertake inspection of the Goods, Services and Deliverables provided hereunder (such 30-day or other agreed-upon period, the “Inspection Period”), and upon such inspection, Buyer will either accept (“Acceptance”) or reject the Goods, Services or Deliverables. Transfer of title of the Goods, Services or Deliverables will not constitute Buyer’s Acceptance of the same. If Buyer does not provide written notice of rejection to Seller within the Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods, Services or Deliverables; provided that such Acceptance will not limit or otherwise affect Seller’s warranty obligations hereunder, which warranties shall expressly survive inspection, test, Acceptance and use of the Goods, Services or Deliverables. Rejected Goods shall be held by Buyer, at Seller’s risk and expense, until Buyer receives Seller’s written instructions regarding disposition of such Goods. Buyer will receive a full refund for rejected Goods returned to Seller, including cost of transportation.

8. WARRANTIES.

(a) Goods. Seller warrants to Buyer that for the duration of the Warranty Period with respect to Goods and Deliverables delivered hereunder, the Goods and Deliverables shall (i) conform to the Specifications, (ii) be of merchantable quality, (iii) be fit for the purposes communicated to Seller or which Seller has reason to know is intended for the Goods and Deliverables, (iv) unless expressly agreed to by Buyer in writing, be new, (v) be free from defects in design, material and workmanship, (vi) comply with all applicable federal, provincial and local laws, regulations, standards and codes, including without limitation all licensing and permitting requirements, and (vii) be free of any liens of encumbrances on title. To the extent Seller provides Goods or Deliverables not manufactured by or for Seller, Seller shall assign to Buyer all manufacturer’s warranties and shall take all necessary steps to complete such assignment of such warranties to Buyer. The warranties set forth in this Section 8(a) shall survive for the duration of the Warranty Period.

(b) Services. Seller warrants to Buyer that Seller shall perform the Services (i) in a workmanlike manner, with Seller exercising that degree of professionalism, skill, diligence and care as would reasonably be expected from a skilled and experienced service provider providing services similar to the Services, (ii) in accordance with the Specifications, (iii) in conformance with Buyer’s policies and codes of conduct applicable to Seller, including without limitation, all environmental, health, and safety policies and practices applicable to the worksite where Services are to be performed, and (iv) in compliance with all applicable federal, provincial and local laws, regulations, standards and codes, including without limitation all licensing and permitting requirements. The warranties set forth in this Section 8(b) shall survive for the duration of the Warranty Period.

(c) IP Rights. The Goods, Services and Deliverables provided under the Agreement will not violate or infringe the IP Rights of any third party. The warranty set forth in this Section 8(c) shall survive for the applicable statute of limitations relevant to claims arising from third-party IP Rights. To the extent any Deliverables contain any intellectual property of Seller or Seller’s licensors, Seller hereby grants to Buyer a worldwide, royalty-free, non-exclusive, perpetual license or sublicense, as the case may be, to use, copy, modify and distribute such intellectual property as part of the Deliverables.

9. REMEDIES.

(a) In the event of breach of any of the warranties in Section 8(a) or 8(b), and without prejudice to any other right or remedy available to Buyer (including Buyer’s indemnification rights hereunder), Seller will, at Buyer’s option and Seller’s expense, refund the purchase price for, or correct or replace the affected Goods or Deliverables, or re-perform the affected Services, within 10 day(s) after notice by Buyer to Seller of warranty breach. All associated costs, including costs of re-performance, costs to inspect the Goods, Deliverables and/or Services, transport the Goods or Deliverables from Buyer to Seller, and return shipment to Buyer, and costs resulting from supply chain interruptions, will be borne by Seller. If Goods or Deliverables are corrected or replaced or Services are re-performed, the warranties in Section 8(a) or 8(b) will continue as to the corrected or replaced Goods or Deliverables or re-performed Services for a further Warranty Period commencing on the date Buyer Accepts the corrected or replaced Goods or Deliverables or re-performed Services. If Seller fails to repair or replace the Goods or Deliverables within the time periods required above, Buyer may repair or replace the Goods or Deliverables at Seller’s expense. If Seller fails to re-perform the Services within the time periods required above, Buyer may obtain the Services from another service provider, and any costs arising from Seller’s delay will be borne by Seller.

(b) In the event that any Goods, Services or Deliverables provided by Seller to Buyer are subject to a claim or allegation of infringement of a third party’s IP Rights, Seller shall, at its own option and expense, without prejudice to any other right or remedy of Buyer (including Buyer’s indemnification rights hereunder), promptly provide Buyer with a commercially reasonable alternative, including procuring for Buyer the right to continue using the Goods, Services or Deliverables in question, replacing such Goods, Services or Deliverables with a non-infringing alternative satisfactory to Buyer, or modifying such Goods, Services or Deliverables (without affecting functionality) to render them non-infringing.

10. CONFIDENTIALITY.
Seller agrees to keep confidential all information or data, whether written or oral, obtained from Buyer or pursuant to the manufacture or delivery of Goods or Deliverables or performance of Services for Buyer. If the parties have entered a Confidentiality and Non-Disclosure Agreement (an “NDA”), this Agreement and information exchanged in furtherance of this Agreement shall be deemed to be confidential information under such NDA.

11. INDEMNITY.
Seller agrees to indemnify, defend and hold harmless Buyer and its employees, directors and officers against any and all liabilities, penalties, demands, claims, causes of action, suits, losses, damages, costs and expenses (including cost of defense, settlement and reasonable attorneys’ fees) which any or all of them may hereafter suffer, incur, be responsible for or pay out as a result of (i) bodily injuries (including death) to any person or damage (including loss of use) to real or tangible property, occurring to, or caused in whole or in part by, Seller or its employees, agents or subcontractors, including due to the use of or any actual or alleged defect in the Goods, Deliverables or Services, (ii) any claim that the Goods or Services infringe the IP Rights of any other person or entity, (iii) any negligent act or omission or the willful misconduct of Seller or its employees, agents or subcontractors, (iv) Seller’s breach of its obligations under this Agreement, or (v) any liens or encumbrances relating to Goods or Services (including without limitation liens or encumbrances placed by Seller’s subcontractors). This indemnification and defense obligation paragraph shall survive the termination or completion of this Agreement.

12. INSURANCE.
If Seller is furnishing Services, Seller shall carry at all times insurance in the types and amounts set forth below, and to furnish to Buyer an Original Certificate of Insurance (ACORD form) and the Standard ISO endorsement prior to commencement of any Services. In addition, Seller will name Buyer as Additional Insured under all coverages except Workers Compensation and provide a Waiver of Subrogation. For purposes of the certificate and endorsement, Seller will show Buyer as “NG Operations, LLC and its affiliates, subsidiaries, parents and partnerships”. Certificates shall state that the policies may not be changed or terminated without at least thirty (30) days’ prior written notice to Buyer. All insurance as required in this paragraph shall be maintained with reliable insurance companies having a Best rating of A-, VII, or better. This insurance obligation paragraph shall survive the termination or completion of this Agreement for a period equal to the Warranty Period.

• General Liability* – Including Products Liability, Contractual Liability and Completed Operations – $1,000,000 Each Occurrence; $2,000,000 Aggregate (can include Umbrella Liability)
• Automobile Liability – Including Hired and Non-Owned Vehicles – $1,000,000 Combined Single Limit for Bodily Injury and Property Damage (can include Umbrella Liability)
• Workers’ Compensation – Statutory Limits for the Province(s) in which the work is performed
• Employers Liability – $500,000 Each Accident; $500,000 Each Employee-Disease; $500,000 Policy Limit – Disease
• Umbrella Liability* – $5,000,000 Each Occurrence; $5,000,000 Aggregate
• Professional Liability – $1,000,000 Each Occurrence (for professional services such as architecture, surveying and engineering that require professional licensure by a federal or provincial regulatory body)
  
  * For services that include (a) roofing installation or repair or (b) any installation, use or removal of scaffolding or a crane of a height in excess of 20 feet, (i) General Liability Coverage must be at least $2,000,000 Each Occurrence and $5,000,000 Aggregate (can include Umbrella Liability), and (ii) Umbrella Liability Coverage must be at least $10,000,000 Each Occurrence and $10,000,000 Aggregate.

13. ENVIRONMENTAL MATTERS.
To the fullest extent permitted by law, Seller agrees to defend, indemnify and hold harmless Buyer, Buyer’s affiliates, and each such entity’s employees, directors and officers from and against any and all claims, demands, liabilities, losses, judgments, penalties and expenses, including but not limited to reasonable attorneys’ fees, (hereinafter, “Costs”) relating to or arising from the transportation, handling, or the actual or threatened spill, discharge, release or deposit on, off or about Buyer’s property by Seller or any of Seller’s employees, agents or subcontractors, of any Hazardous Substances. For the purpose hereof, “Hazardous Substances” shall mean (a) any substance or material that is prohibited, regulated or designated as a pollutant, contaminant, toxic substance, deleterious substance, dangerous good, waste or residual material, hazardous waste or hazardous residual material, hazardous substance, hazardous material or any other similar designation, under any provision of Environmental Law (defined below), (b) any petroleum product or by-product and derivatives thereof, including oil and fuel of any kind, (c) any substance or material that is toxic, explosive, poisonous, corrosive, flammable, radioactive, oxidizing, leachable, carcinogenic or mutagenic, (d) asbestos and any asbestos-containing material, including asbestos-containing vermiculite, chlorinated solvents, any perfluorooctane sulfate, perfluorooctanoic acid or any other polyfluoroalkyl substances, polychlorinated biphenyls, transformer and other equipment that contains polychlorinated biphenyls, lead paint or lead containing material or equipment and urea formaldehyde foam insulation, (e) mould, radon, pyrite, pyrrhotite and mercury, (f) any microorganism, sound, vibration, rays, heat, odour or radiation that is likely to alter the quality of any component of the environment in any way, and (g) any substance or material that is otherwise regulated by Environmental Law; and “Environmental Law” shall mean any federal, provincial, regional, local, municipal, foreign, order, constitution, law, ordinance, rule, regulation, by-law, statute, or treaty concerning pollution or protection of human health or the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, control, or cleanup of any Hazardous Substances, as well as any directive, guideline and policy of any governmental authority imposing liability or establishing standards of conduct or other government restrictions relating to such laws and having force of law or, if not having the force of law, is considered by any such governmental authority as requiring compliance as if having the force of law or which establish the interpretative position of the law by any such governmental authority

14. COMPLIANCE WITH LAWS.
Seller will comply with all applicable laws and regulations affecting the manufacture and sale of the Goods or the provision of the Services and Deliverables. Seller, at its own expense, shall obtain all necessary permits, licenses, and other governmental approvals to provide the Goods, Services, and Deliverables.

15. INDEPENDENT CONTRACTOR.
The relationship of the Seller and Buyer is that of independent contractors. In no event shall the relationship between the parties be construed as creating any partnership, joint venture, agency, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party shall have the power or authority to act for, contract for, bind, or commit the other party in any way.

16. SUBCONTRACTORS.
Seller may, with the prior written consent of the Buyer, retain and utilize the services of such subcontractors as may be reasonable or necessary for the prompt and efficient completion of the Services; provided, that, (i) such arrangement will not release Seller from its obligations under this Agreement, (ii) the acts or omission of such subcontractor shall be deemed to be the acts and omissions of Seller, and (iii) Seller shall require such subcontractor to meet the insurance requirements set forth herein as if such subcontractor were Seller hereunder, and (iv) Seller shall require each subcontractor to abide by the confidentiality obligations of this Agreement and any NDA.

17. ASSIGNMENT.
Neither party shall assign this Agreement pursuant to assignment, change of control, merger or otherwise to any other party without the express written consent of the other party; provided, however that Buyer may freely assign this Agreement at any time to any party that directly or indirectly owns Buyer, is owned by Buyer, or is under common ownership with Buyer.

18. WAIVER.
No waiver of any provision of this Agreement shall be enforceable against a party unless such waiver is set forth in a writing signed by such party.

19. SEVERABILITY.
The invalidity of any portion of the Agreement shall not invalidate any other portion of the Agreement and, except for such invalid portion, the Agreement shall remain in full force and effect. If for any reason any portion of the Agreement is illegal or unenforceable, such provision will be severed, and the remainder of these Terms shall be interpreted in a manner that will not affect the enforcement of the remaining provisions.

20. FORCE MAJEURE.
Neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence, including acts of God, the public enemy, or the government in its sovereign or contractual capacity (including acts of government related to economic sanctions and embargoes), fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In such event (a “Force Majeure”), the party whose performance is adversely affected shall so notify the other party’s authorized representative in writing, with a description of the nature of the event and a reasonable estimate of the duration of the delay.

21. GOVERNING LAW.
This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Province of Nova Scotia, and the federal laws of Canada applicable therein.

22. SUBMISSION TO JURISDICTION.
Any action or proceeding arising out of or relating to this Agreement and all transactions and matters contemplated hereby, including any disputes with respect to the formation, performance, and termination or expiration of this Agreement will be instituted in the courts of the Province of Nova Scotia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, and all contemplated transactions, including but not limited to contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the Province of Nova Scotia and any appellate court from any thereof. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by action on the judgment or in any other manner provided by law.