COMPLETE TERMS. All sales by Airfoam are governed by these terms and conditions of sale ("Terms"), together with other sales terms, if any, agreed to by the Buyer and Airfoam in writing ("Sales Terms"), such as on written Sales Orders. In the event of an inconsistency between any Sales Terms and these Terms, the Sales Terms shall prevail. These Terms, together with the Sales Terms, if any, are referred to herein as the "Agreement". This Agreement constitutes the entire agreement between the Buyer and Airfoam regarding the sale of products ("Products") by Airfoam to the Buyer and sets out the final and complete expression of all terms and conditions of this Agreement. Any representations, promises, warranties, or statements that are not contained in this Agreement are void. If this Agreement is or is deemed to be an acceptance of a prior offer by Airfoam or the Buyer, the acceptance is conditional on the Buyer's acceptance of these terms and conditions. Airfoam hereby gives notice that it expressly rejects any terms or conditions contained in any document that has been, or may in the future be, supplied to it by the Buyer which are inconsistent with, or attempt to vary, any of this Agreement, whether such terms or conditions are set forth in the Buyer's bid, proposal, order acknowledgement, invoice, or otherwise disclosed to Airfoam. Airfoam's sale or delivery of any Products to the Buyer will not be construed as an acceptance of any terms or conditions contained in any document provided by the Buyer. Any action by the Buyer in furtherance of a sale or purchase of Product shall constitute acceptance of this Agreement. These terms and conditions can be modified, waived, or amended only in writing signed by an authorized representative of both the Buyer and Airfoam.
ORDERS / ORDER CHANGES. Orders for Products will be submitted by the Buyer to Airfoam in writing and in English using Airfoam's then current Product specifications. An order once placed by the Buyer cannot be changed or cancelled by the Buyer except with the approval of Airfoam, which approval will not be unreasonably withheld, and, in the case of cancellation, only if cancellation can be effected without material cost to Airfoam, however, a minimum change order fee of $75 applies to and is payable by the Buyer to Airfoam for all order changes and cancellations.
TERMS OF PAYMENT. The price for Product is the price in effect on the date of shipment, unless otherwise agreed to by the Buyer and Airfoam in writing. Airfoam may adjust the price of any Product upon at least ten (10) days prior notice unless otherwise agreed to by the Buyer and Airfoam in writing. Payment is due according to the terms set forth on the invoice issued by Airfoam, unless the parties agree to other terms in writing (and if the invoice issued by Airfoam does not contain the terms of payment and the parties have not agreed to other terms in writing, payment is due upon receipt of the invoice). If the Buyer fails to pay any sum owed hereunder when due, interest shall accrue and be payable by the Buyer to Airfoam on such sum at the rate of 1.5% per month or the highest rate allowed by law, whichever is lower. If Airfoam, in its sole discretion, finds it necessary to employ an agent or attorney to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, reasonable agent's or attorney's costs (including fees, disbursements and taxes).
FINANCIAL RESPONSIBILITY. Any credit terms offered by Airfoam are available only for so long as the Buyer complies with all of its obligations under this Agreement, including, without limitation, the provisions requiring timely payment of invoices within the required time. If credit terms are no longer available, the Buyer shall pay cash in advance for all purchases. If Airfoam has any doubt at any time as to the Buyer's financial situation, Airfoam, at its option, may either (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to Airfoam, or (b) terminate this sale. Nothing in this paragraph is intended to affect the obligation of the Buyer to accept and pay for the Products.
SECURITY INTEREST. Airfoam shall have a continuing security interest or lien on all Products purchased by the Buyer until paid in full. The provisions of the preceding sentence are of the essence of this sale.
NO DEDUCTION. The Buyer shall not be entitled to deduct from the price invoiced to it by Airfoam the amount of any claim asserted by the Buyer against Airfoam, unless such claim has been allowed, in writing, by Airfoam. The provisions of the preceding sentence are of the essence of this sale.
TAXES. All sales, excise, or other forms of taxes and duties levied against this transaction shall be paid by the Buyer over and above all other sums the Buyer may be or may become obligated to pay hereunder.
TITLE AND RISK. Airfoam warrants it has and will convey good and marketable title to the Products. Unless otherwise provided in this Agreement, risk of loss of Product shall transfer to the Buyer at Airfoam's or the original manufacturer's plant at which the Products are manufactured when the Product has been loaded onto the carrier taking delivery of the Product, regardless of whether the Buyer or Airfoam is arranging for the transportation of the Products. In addition, unless otherwise provided in this Agreement, title to Product shall transfer to the Buyer simultaneously with risk of loss.
DELIVERY. Unless otherwise agreed in writing by the parties, the Buyer will arrange for transportation of the Products from Airfoam's or the original manufacturer's plant at which the Products are manufactured and Airfoam will load the Products onto a suitable carrier arranged by the Buyer at that location. If the parties have agreed in writing that Airfoam will arrange for transportation of the Products from Airfoam's or the original manufacturer's plant at which the Products are manufactured to the destination required by the Buyer, then: (a) the delivery dates are approximate and subject to carrier availability, (b) Airfoam reserves the right to route all shipments and may assist the Buyer in processing claims against carriers, without incurring liability therefore, (c) the Buyer agrees to be responsible for timely offloading of Products at their destination (typically two hours for a truckload), and any costs payable for any delay in the timely offloading of Products by the Buyer shall be for the Buyer's account, (d) any increase in delivery costs resulting from the Buyer's inaccurate or revised delivery address or instructions to Airfoam or to the carrier, and any extra costs of utilizing substitute methods of delivery or off-loading, including when the intended type of carrier or loading or unloading facilities become unavailable, shall be for the Buyer's account, (e) any claims for loss or damage after risk of loss has passed shall be filed by the Buyer with the carrier, (f) Airfoam shall not be liable for loss or damage from delay in delivery or failure to manufacture, (g) if delivery is delayed at the request of, or due to acts or omissions by the Buyer, Airfoam shall have the right to store the Products at a place of its own choice for the Buyer's account and risk and to invoice the Buyer in accordance with the original invoicing and payment terms and for such storage charges incurred as a result of the delay.
INSPECTION AND ACCEPTANCE: The Buyer shall, upon delivery of Products to the destination at which they are unloaded from the carrier that is transporting the Products from Airfoam's or the original manufacturer's plant are manufactured, immediately count and inspect and either accept or reject such Products within a reasonable period not to exceed fourteen (14) calendar days of delivery (the "Acceptance Period"). In the event that Products do not comply with the requirements under this Agreement, the Buyer shall promptly notify Airfoam and provide a specific written explanation of the basis for rejection. The Buyer shall be deemed to have accepted any Product delivered hereunder and to have waived any right to reject in the event that Airfoam does not receive such notice of rejection within the Acceptance Period. Airfoam shall be afforded a reasonable opportunity to repair or replace non-conforming Product at Airfoam's option, provided that, if Airfoam reasonably determines that the Product complied with the requirements under this Agreement when the Product was loaded onto the carrier taking delivery of the Product, then all expenses related to the improper rejection are the responsibility of the Buyer.
RETURNS OF PRODUCTS. Stock Products may be returned within 90 days of purchase. Special Order Products (including, but not limited to, floatation billets, tapered Products, Quad-Deck) cannot be returned. The Buyer is responsible for freight costs associated with returning Products. Returned Products must be in 100% resalable condition, must be inspected by an Airfoam representative, and a product return must be authorized by Airfoam prior to the product being returned. Returns must be received within 14 days of Airfoam's return authorization. Returns that reach Airfoam's warehouse later than 30 days from the original ship date are subject to a 25% restocking fee.
PRODUCT PROTECTION. To avoid Product damage and/or mold growth, the Buyer shall protect all Products from physical damage, moisture, dirt, insects and extended ultraviolet light exposure during transit, storage, and use, including without limitation, transit to, storage at, and use on a jobsite.
RESALE OF PRODUCTS. If the Buyer is reselling any Product, the Buyer agrees to furnish its purchasers copies of these Terms and incorporate these Terms in the Buyer's sales order and invoice forms, and Airfoam agrees to make copies available upon request. In all events and regardless of whether the Buyer complies with this provision, the rights of such purchasers shall be determined under the provisions of this Agreement.
DELAYS/FORCE MAJEURE. In the event Airfoam is unable to ship the ordered Products because of fire, flood, windstorm, or other act of God, labor or civil disturbance, shortage of raw materials, failure of timely delivery by Airfoam's suppliers, energy or transportation shortages, or any other cause whether or not similar to the causes listed above, beyond Airfoam's reasonable control, Airfoam reserves the right to cancel the affected order without any liability to the Buyer whatsoever. In no event shall Airfoam be obligated to purchase material from others to enable Airfoam to deliver Products to the Buyer hereunder.
WAIVERS AND RELEASES. Airfoam assumes no responsibility regarding the Buyer's use of its Products or any other third-party Products resold by Airfoam. It is the responsibility of the Buyer and any others who use or install the Products to understand and follow safe methods of use and handling of the Products, the Safety Data Sheet (SDS) is published at www.airfoam.com/SDS.pdf and available in print upon request.
COMPLIANCE WITH LAWS. The Buyer assumes full liability and responsibility for compliance with all applicable laws, statutes, ordinances and regulations of any governmental authority including, without limitation, any relating to occupational health and safety, any locally applicable building codes, the Foreign Corrupt Practices Act or similar legislation, the anti-money laundering provisions of the USA Patriot Act and Bank Secrecy Act, and Canadian and United States export control laws. The Buyer shall not resell or ship to persons on the denied parties list or persons located within embargoed countries (in both cases as defined under the applicable export control laws). Airfoam assumes no liability for the Buyer's failure to comply with the Buyer's obligations arising under European Union REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) Regulations.
INSTALLATION WAIVER AND RELEASE. The Buyer acknowledges and assumes all liability and responsibility for the safe handling, storage and installation of Airfoam Products in those projects where the Airfoam Products are used after being purchased by the Buyer from Airfoam, and hereby RELEASES, REMISES AND FOREVER DISCHARGES Airfoam, Airfoam's affiliates, suppliers and resellers, and each of their respective directors, officers, employees and agents (collectively, the "Released Airfoam Parties") FROM ANY AND ALL LOSSES, CLAIMS, SUITS, DEMANDS, ACTIONS, CAUSES OF ACTION, LIABILITIES, PENALTIES, COSTS, EXPENSES (INCLUDING LEGAL FEES AND DISBURSEMENTS), JUDGMENTS AND DAMAGES OF ANY NATURE OR KIND WHATSOEVER, whether under contract, tort or any other theory of law or equity (collectively, "Claims"), that arise or accrue from, as a result of, in relation to, or in connection with, the installation and handling of the Airfoam Products by any person from and after being purchased by the Buyer from Airfoam, including, but without limitation, loss or damage to any person's property, or personal injury to, or death of, any person, and whether or not caused or contributed to by the negligence, imprudence, lack of skill, error of judgment or any other act or omission of any of the Released Airfoam Parties.
In addition, and without limiting the generality of the foregoing, the Buyer will inform staff, customers, and agents of the following guidelines on the proper use and handling of the Airfoam Products:
"Combustibility & Code Compliance: CAUTION: EPS Products are combustible. A protective barrier or thermal barrier is required as specified in the appropriate building code. The Safety Data Sheet (SDS) is available upon request or at www.airfoam.com/SDS.pdf. The installer is responsible for safe and correct installation of the Airfoam Products in accordance with, but not limited to, the NBCC, CAN/ULC, IBC, and IRC standards, and/or any other current applicable codes and regulations. Any variance from those standards must be provided and certified in advance by a qualified engineer, licensed for the jobsite location and specifications."
In addition, the Buyer will inform staff, customers, and agents of the following guideline on the proper use of the Quad-Lock ICF Wall System and/or the Quad-Deck/Tilt-Deck System:
"Bracing, Shoring & Reinforced Concrete: The installer is responsible for the design and correct installation of bracing and shoring of the Quad-Lock ICF Wall System and/or the Quad-Deck/Tilt-Deck System in accordance with, but not limited to, ACI (American Concrete Institute) 347 "Guide to Formwork for Concrete", NBCC and/or CAN/CSA A23, and/or any other current applicable codes and regulations. The installer is also responsible for placement of all reinforcing steel and concrete in accordance with, but not limited to, ACI (American Concrete Institute) 318 "Building Code Requirements for Structural Concrete", NBCC and/or CAN/CSA A23, and/or any other current applicable codes and regulations. Any variance from those standards must be provided and certified in advance by a qualified engineer, licensed for the jobsite location and specifications. "
ENGINEERING WAIVER AND RELEASE. The Buyer acknowledges and assumes all liability and responsibility for job-specific engineering for any and all projects in which the Airfoam Products are used after being purchased by the Buyer from Airfoam, including, but without limiting the generality of the foregoing, any and all engineering work done by any and all licensed structural and professional engineers and any and all engineering relating to job-specific design specifications, whether done directly by or indirectly for the Buyer, and hereby RELEASES, REMISES AND FOREVER DISCHARGES the Released Airfoam Parties FROM ANY AND ALL CLAIMS (as the term "Claims" is defined above) that arise or accrue from, as a result of, in relation to, or in connection with, any and all job-specific engineering for any and all projects in which the Airfoam Products are used by any person from and after being purchased by the Buyer from Airfoam, including, but without limitation, loss or damage to any person's property, or personal injury to, or death of, any person, and whether or not caused or contributed by the negligence, imprudence, lack of skill, error of judgment or any other act or omission of any of the Released Airfoam Parties.
The Buyer shall defend, indemnify and hold harmless each of the Released Airfoam Parties from and against all Claims arising out of or related to (i) the Buyer's (or others') processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product (or any product containing Product) or (ii) the Buyer's violation of or failure to comply with any applicable laws or regulations.
LIMITED WARRANTY. Airfoam Components Limited Warranty. Airfoam warrants that its Products comply with their published specifications and are free from manufacturing defects ("Defects"). If the customer believes that the Products have Defects, the customer will return samples of the defective Products to Airfoam and upon Airfoam being satisfied that the Products have Defects, Airfoam will replace the defective Products or refund the purchase price, at Airfoam's option.
Third-Party Products' Limited Warranty. Products supplied by and manufactured for third parties and resold by Airfoam are warranted to comply with the warranty and specifications of the original manufacturer or producer of the third-party Products. Should any third-party Product sold hereunder be found not to meet the foregoing warranty, Airfoam will take such action as is specified in the warranty of the original manufacturer or producer, or, at Airfoam's election, make a fair allowance therefore. Written notice of any claim under this warranty must be given to Airfoam within the time specified in the warranty of the original manufacturer or producer not to exceed one (1) year after delivery of Products, and the Buyer must afford Airfoam a reasonable opportunity to inspect the Products in unaltered condition and evaluate the claims in accordance with procedures specified in the original manufacturer's or producer's warranty.
AIRFOAM EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTY THAT PRODUCTS WILL NOT SUPPORT MOLD, THAT THEY WILL NOT CORRODE OR DISSOLVE, THAT THEY WILL NOT BURN OR MELT, THAT THEY WILL NOT CONTRACT OR EXPAND, OR THAT THEY WILL NOT EMIT ANY COMPOUNDS, INCLUDING, WITHOUT LIMITATION, VOLATILE ORGANIC COMPOUNDS.
This warranty shall be exclusive and in lieu of any other representation or warranty, express or implied, including those arising by statute, operation of law, custom of trade or otherwise. Without limiting the generality of the foregoing, Airfoam assumes no responsibility and makes no other representation or warranty, express or implied, whether arising by statute, operation of law, custom of trade or otherwise, as to the merchantability or fitness for a particular purpose of its Products or the performance or results of an installation using its Products.
The Buyer hereby irrevocably waives any and all rights with respect to any implied terms or warranties under the provisions of the Sale of GoodsAct or under any law or legislation of similar effect whether now or hereafter in effect.
INDEMNITY. The Buyer hereby AGREES TO INDEMNIFY AND HOLD HARMLESS each of the Released Airfoam Parties FROM AND AGAINST ANY AND ALL CLAIMS (as the term "Claims" is defined above) that any of the Released Airfoam Parties may sustain, suffer, incur or be required to pay that arises or accrues from, as a result of, in relation to, or in connection with, any matter that is the subject of any of the releases provided above by the Buyer or as a result of the Buyer's or third party's misuse or misapplication of any Products.
LIMITATION OF LIABILITY. The Buyer's sole remedy for a breach of this Agreement by Airfoam shall be limited to replacement by Airfoam of the Products involved or, at Airfoam's option, return by Airfoam to the Buyer of the purchase price of the Products involved in such breach. Airfoam's liability on any Claim of any kind arising out of, connected with, or resulting from this Agreement or the performance or breach of this Agreement, or from the design, manufacture, sales, delivery, resale, installation, repair, operation or use of any Products covered by or furnished under this Agreement shall in no case exceed the purchase price of the Products which gives rise to the Claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY OR NEGLIGENCE OR OTHER TORT OR OTHERWISE, SHALL Airfoam BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF PRODUCTS OR ANY OTHER EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF THE BUYER FOR SUCH DAMAGES EVEN IF Airfoam HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS BY THE BUYER OR ANY THIRD PARTY. ANY LEGAL ACTION AGAINST Airfoam FOR BREACH OF THESE TERMS, INCLUDING ANY WARRANTIES, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY OF THE PRODUCTS.
BREACH; TERMINATION. If the Buyer breaches any term of this Agreement or any other contractual obligation in favor of Airfoam, (a) Airfoam may choose to defer any or all further shipments or other performance under this Agreement and performance of any other contractual obligation in favor of the Buyer until the Buyer cures its breach, or (b) Airfoam may immediately terminate this Agreement, if the Buyer fails to cure such breach within ten (10) days after receipt of written notice from Airfoam describing such breach. In the event of a termination, all outstanding payment obligations or other indebtedness of the Buyer to Airfoam shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance by Airfoam of less than the full amount due shall not be a waiver of any of Airfoam's rights under this Agreement or applicable law. In any event, the Buyer shall remain liable for all loss and damage sustained by Airfoam because of the Buyer's breach.
Notwithstanding any provision in this Agreement, Airfoam shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to the Buyer unless the Buyer is fully in compliance with its payment and other obligations under this Agreement and any other contractual obligation in favor of Airfoam. In addition, in the event that the Buyer fails to make any payment when due, Airfoam shall have the right to offset any and all outstanding payment obligations or other indebtedness of the Buyer to Airfoam against any outstanding payment obligations or other indebtedness that Airfoam or any of its affiliates may owe the Buyer.
WAIVER OF JURY TRIAL / BINDING ARBITRATION. The Buyer hereby waives all rights to a trial by jury. The Buyer consents that all disputes arising out of or relating to this Agreement shall be settled finally by arbitration under the Rules of the British Columbia International Commercial Arbitration Centre ("BCICAC"). The arbitration will take place before one arbitrator appointed in accordance with the BCICAC Rules. The place of arbitration shall be in the City of Vancouver, British Columbia. Any hearings shall be conducted in Vancouver, British Columbia, and will be conducted in English. Except for travel and lodging expenses, which will be borne by each party separately, any and all costs of arbitration and any and all lawyer's fees will be borne by the Buyer and/or Airfoam as determined by the arbitrator depending on the arbitration's outcome.
ASSIGNMENT / ENUREMENT. Neither party to this Agreement shall assign this Agreement or any portion thereof without the advance, written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the forgoing, either party may assign this Agreement in the event of a merger, consolidation or reorganization or in connection with the sale of all or substantially all of the assets of the business of the party to which this Agreement relates. This Agreement shall enure to the benefit of and shall be binding upon the parties and their respective successors and permitted assigns.
SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable in accordance with its express terms in any legal proceeding in any jurisdiction, it shall, as only to that jurisdiction, be separate, severable and distinct from each and every other obligation or duty and shall not affect the validity and enforceability of any other part of this Agreement.
NO WAIVER. Failure or delay of Airfoam to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
REFERENCES. References to the singular or masculine used in this Agreement will be deemed to include references to the plural, feminine or body corporate as the context may require.
CONSTRUCTION. The division of this Agreement into articles and the insertion of headings are for convenience of reference only and are not to affect the construction or interpretation of this Agreement.
NO PARTNERSHIP. The Buyer and Airfoam are independent contractors and nothing in this Agreement constitutes either party to this Agreement as an agent, partner or joint venturer of or with the other party to this Agreement.
GOVERNING LAW. Any transaction subject to this Agreement shall be construed and governed in all respects by the laws of the province of British Columbia, Canada (without regard to its conflicts of law rules). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
GENERAL. These Terms, as published on Airfoam's website located at www.airfoam.com/terms at the time of sale, are the official terms and conditions of sale between Airfoam and the Buyer and may be amended from time to time without notice at Airfoam's sole discretion.