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a. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the Insulflex® products ("Products") manufactured and supplied by ADL Insulflex, Inc. (“Seller”) to the buyer ("Buyer") named on the applicable order confirmation (the “Order”).
b. Seller’s order confirmation and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Shipment of the Products by Company constitutes Buyer’s acceptance of these Terms. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms.
a. All Products are sold in accordance with Seller's published specifications and documentation current at the time of shipment, where all such specifications and documentation are only available in English. Seller reserves the right to make changes to product specifications, designs, and materials without prior notice. The Products are for use by those with technical competence in the fields of engineering, thermodynamics and high temperature technology. Buyer is solely responsible for determining the suitability and safety of the Products for each specific application.
b. Seller may, at its discretion, provide samples of the Products to Buyer solely for evaluation and testing purposes. Samples are provided “as is”, without any representations, conditions or warranties of any kind, whether express or implied, including any condition or warranty of merchantability, fitness for a particular purpose, or that the samples are representative of or will perform in the same manner as the Products. Provision of samples does not create or modify any warranty, does not expand Seller’s obligations under these Terms, and does not grant Buyer any rights in Seller IP (as defined herein) except as strictly necessary to test the samples. Seller shall have no liability arising from Buyer’s use or testing of samples.
c. Seller makes no representations, conditions or warranties as to the completeness, accuracy or suitability of any technical information, data sheets, samples, marketing materials, illustrations, or other documentation provided in connection with the Products. Any such materials are provided for general informational purposes only, and Buyer relies on them at its own risk.
a. The Products will be delivered within a reasonable time after receipt of Buyer's purchase order and, in the event Products are customized at Buyer’s request, subject to the availability of finished Products. Any delivery date communicated by Seller to Buyer, including any delivery date stated in the Order, is an estimate only and not a guaranteed delivery date. Seller shall not be liable for any delays, loss or damage in transit.
b. Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the place of delivery specified in the order confirmation (the "Delivery Point") using Seller's standard methods for packaging and shipping such Products.
c. Seller may, with Buyer’s prior consent, make partial shipments of Products to Buyer. Where Buyer agrees to accept partial shipment, each such shipment will constitute a separate sale, and Buyer shall pay for the Products included in each shipment in accordance with these Terms, whether such shipment is in whole or partial fulfillment of Buyer’s Order.
d. If for any reason Buyer fails to accept delivery of any of the Products, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) in exceptional circumstances and at Seller’s sole discretion, Seller may arrange for temporary storage of the Products, in which case Buyer shall be responsible for all commercially reasonable costs and expenses incurred in connection with such storage, including insurance.
Delivery of the Products shall be made in accordance with the Incoterms® 2020 expressly identified by name and location in the applicable Order. Where no Incoterm is expressly stated in the Order, delivery shall be deemed to occur, and risk of loss shall pass in accordance with Section 3 of these Terms.
a. Buyer shall notify Seller in writing promptly after receipt of the Products of any Non-Conforming Products reasonably discoverable upon delivery, including any shipment discrepancies (such as incorrect Products or quantities). Buyer shall provide such supporting information as Seller may reasonably request so that Seller can evaluate the matter and address it efficiently. For clarity, Buyer’s storage of Products for later use shall not, by itself, affect Buyer’s rights with respect to Manufacturing Defects that are not reasonably discoverable upon delivery. Any such Manufacturing Defects shall be governed exclusively by the warranty set out in Section 9.
“Non-Conforming Products” means only the following: (i) Products shipped are materially different than identified in the applicable Order; or (ii) in the case of custom-made Products, such Products have not been manufactured in accordance with Buyer’s approved specifications.
b. If Buyer timely notifies Seller of any Non-Conforming Products, Seller shall, in its sole discretion, (i) replace such Non-Conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-Conforming Products. Buyer shall return the Non-Conforming Products to Seller’s designated facility in unused condition, and Seller will work with Buyer in good faith to provide a prompt and practical resolution. Except as expressly provided under Section 9 for Manufacturing Defects, Seller does not accept returns or provide refunds or credits for Products that have been installed, used, altered, cut, modified, or otherwise placed into service.
c. The remedies set forth in this Section 5 are intended to ensure an efficient process for addressing Non-Conforming Products. Remedies for Manufacturing Defects are governed exclusively by Section 9. In no event shall Seller be responsible for labor costs, removal or reinstallation expenses, service charges, project delays, or other consequential costs associated with any Products.
Standard Products, in original packaging and unused condition, may be returned within ninety (90) days of delivery solely with Seller’s prior written consent. A restocking charge of twenty percent (20%) applies to all approved returns. Custom-made, private-branded, specially fabricated or discontinued Products are non-returnable. Commercial returns permitted under this Section 6 do not constitute an acknowledgment of fault, breach, or warranty by Seller. Notwithstanding the foregoing, this Section 6 does not apply to Non-Conforming Products or Manufacturing Defects, which are governed exclusively by Sections 5 and 9.
a. Buyer shall purchase the Products from Seller at the prices (the "Price[s]") set forth in Seller's published price list in force as of the date that Seller accepts Buyer's purchase order.
b. All Prices are exclusive of all harmonized sales tax, Products and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.
a. Buyer shall pay all invoiced amounts due to Seller in accordance with the payment terms and currency specified by Seller for Buyer at the time of onboarding or as otherwise set out in the applicable Order. Unless otherwise expressly agreed in writing by Seller, all payments shall be made by the payment method specified on the applicable invoice.
b. Buyer shall pay interest on all late payments at the rate of one and a half percent (1.5%) per month or the maximum rate permissible under applicable law, whichever is less. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
c. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
a. Seller warrants to Buyer that, for a period of one (1) year from the date of shipment of the Products (the “Warranty Period”), the Products shall be free from defects in materials and workmanship existing at the time of shipment (each, a “Manufacturing Defect”).
b. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a), SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
c. Seller shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer provides Seller with written notice of the claimed Manufacturing Defect within a reasonable time after discovery and in any event within the Warranty Period, describing the defect in reasonable detail; (ii) Seller is given a reasonable opportunity to review and preliminarily qualify the claim, including through Seller’s return material authorization (“RMA”) process, and no Products shall be returned without Seller’s prior issuance of an RMA; and (iii) Seller examines the affected Products or otherwise reasonably verifies, in its sole discretion, that the Products contain a Manufacturing Defect.
d. The Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer continues to use the Products after providing notice of the claimed Manufacturing Defect; (ii) the defect arises from improper storage, handling, installation, misuse, abuse, or use of the Products in a manner inconsistent with Seller’s written instructions or published specifications; or (iii) Buyer alters the Products without the prior written consent of Seller.
e. Subject to Section 9(c) and Section 9(d) above, with respect to any such Products proven to contain a Manufacturing Defect during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products or (ii) refund the price of such Products. If Seller elects repair or replacement due to a Manufacturing Defect, Seller may require Buyer to return the affected Products, at Seller’s expense, in accordance with Seller’s instructions.
f. THE REMEDIES SET OUT IN THIS SECTION 9 ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET OUT IN SECTION 9(a).
a. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
c. The limitation of liability set forth in Section 10(b) shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller's acts or omissions.
Seller maintains a quality management system and may, from time to time, seek or maintain certifications relating to its manufacturing processes, including ISO 9001. Buyer acknowledges and agrees that Seller’s quality management practices, and any certifications it may obtain, relate to Seller’s manufacturing processes only and do not constitute a representation, condition or warranty regarding the performance, suitability, durability, or fitness of the Products for any particular purpose, nor do they expand or modify the limited warranty set out in Section 9 or any other obligations of Seller under these Terms.
The Products are supplied on strict agreement that they shall not be sold, leased, transferred or trans-shipped to end users or countries that are sanctioned or restricted by the governments of Canada or the United States. Buyer shall comply with all applicable export control laws and regulations and shall not export, re-export, or transfer products without the required governmental approvals. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
All intellectual property rights in and to the Products, and in and to all designs, specifications, drawings, data, documentation, samples, know-how, processes, trademarks, trade names, logos, patents, copyrights, trade secrets and other materials provided by Seller in connection with the Products (collectively, the “Seller IP”), are and shall remain the exclusive property of Seller or its licensors. No rights or licenses in the Seller IP are granted to Buyer, whether by implication, estoppel or otherwise, except for a limited, non-exclusive, non-transferable right to use the Products solely for their intended purpose and in accordance with these Terms. Buyer shall not, and shall not permit any third party to, copy, modify, reverse engineer, decompile, disassemble, create derivative works from, or otherwise attempt to derive the composition, structure, or underlying ideas or know-how of the Products or any Seller IP, except to the extent such restriction is prohibited by applicable law.
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of the Order; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Seller may amend these Terms from time to time by posting an updated version on Seller’s website located at https://www.adlinsulflex.com/, or by otherwise making the amended Terms available to Buyer. Unless otherwise expressly stated by Seller, any amendment applies only to Orders accepted by Seller after the effective date of such amendment and does not apply retroactively to any Orders already accepted or fulfilled.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order including, but not limited to, the following provisions: Section 10 (Limitation of Liability), Section 12 (Compliance with Laws), Section 13 (Intellectual Property), Section 14 (Confidential Information) Section 17 (Governing Law), and this Section 21 (Survival).
