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Terms and Conditions of Sale

Entire Agreement

These Terms and Conditions of Sale together with Dealer's Credit Application Terms and Conditions (if applicable), between the Business and its Business Owners as Guarantors (the “Dealer”) and Airtek Ontario Inc., its subsidiaries, affiliates and/or assigns (“AOI”) are incorporated herein by reference and forming the entire agreement and are applicable to all transactions between AOI and the Dealer unless otherwise specifically agreed to in writing. The Dealer acknowledges that its standard business forms, including purchase orders and requests for proposal may be used in the ordinary course of business between AOI and the Dealer, but that such standard business forms will only be used to define the description, quantity, price and destination of goods to be sold, supplied or delivered by AOI to the Dealer. All prior oral or written agreements, including but not limited to the Dealer's purchase order, which may be different from or purport to be in addition to these Terms and Conditions of Sale, are not applicable nor binding on AOI. The Dealer is deemed to have accepted these Terms and Conditions of Sale if any goods or services are sold, supplied or delivered; or an invoice is delivered by AOI to the Dealer in respect of such goods or services.

Acceptance of Orders

All orders are subject to acceptance by AOI, which acceptance is contingent on adequate supply and, if applicable, credit approval of the Dealer.

Cancellation

The Dealer may not cancel, change or modify an order without the prior written consent of AOI and the Dealer is responsible of all applicable cancellation or re-stocking fees. Special order items may not be cancelled or returned and no refund will be issued.

Pricing

All prices are subject to change without notice unless noted on AOI's quotation. The Dealer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to the quoted prices.

Payment

Credit accounts are due and payable Net 30th day following the date of invoice unless otherwise agreed upon in advance. A service charge of 1.5% per month (or 18% per annum) applies to any past due accounts; and an NSF fee of $50.00 will be charged for any returned payments from any financial institution. The Dealer acknowledges that if the business is a partnership, all indebtedness incurred is joint and several. The amount of credit granted or withdrawn may be changed at any time at the sole discretion of AOI. The Dealer hereby consents to receiving electronic documents, including invoices and statement of account from AOI.

Shipment

All orders are shipped Free on Board (FOB) Shipping Point. Risk of loss will be transferred to the Dealer upon tender of goods to the Dealer, the Dealer's representative or common carrier.

Delivery

Delivery to job site or another location requested by the Dealer constitutes delivery to the Dealer, regardless of whether the Dealer or its agent is at such location at time of delivery or if a delivery receipt is signed. AOI will make a good faith effort to complete the delivery of all goods ordered by the Dealer, provided, however, that AOI assumes no responsibility or liability and will not accept any back charge for any loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to AOI, including but not limited to, as a result of AOI's non-performance caused by an act of God, war, labour disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers, or any other causes of any kind beyond the control of AOI.

Inspection and Acceptance

The Dealer shall examine all goods upon receipt and prior to installation. All claims for damages, shortage, errors in shipment or improper delivery must be made to AOI in writing within five (5) business days of delivery, after which date the Dealer will be deemed to have irrevocably accepted the goods, if not previously accepted, and will have no right to reject the goods or to revoke acceptance. For claims due to billing errors or adjustments, the Dealer must notify AOI in writing within ten (10) business days from the invoice date. The Dealer is deemed to have waived any claims if AOI has not received it in writing within such period of time.

Back-Orders

Items which are not shipped are back-ordered for future shipment unless the Dealer cancels its order in accordance with these Terms and Conditions of Sale.

Returns

The Dealer may return any goods in AOI’s regular stock and are not special ordered items, if: (a) it is in new condition and suitable for resale in its undamaged, original packaging and with all original parts and accessories; and (b) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns are subject to a 25% re-stocking fee, unless otherwise agreed to by AOI. Special orders or non-stock items may be returned if the manufacturer is willing to accept the return.

Set-Off

The Dealer is not entitled to any set-offs of any amounts due to or due by AOI to the Dealer in connection with any transactions governed by these Terms and Conditions of Sale.

Builder's Liens

The Dealer acknowledges and agrees that, in the event that the Dealer purchases goods from AOI and supplies or incorporates such materials in respect of an improvement pursuant to the applicable provincial construction or builder's lien legislation, such goods will be deemed to have been purchased pursuant to a prevenient arrangement and that one continuing contract is deemed to be in place.

Exclusion of Warranty and Limitation of Liability

AOI warrants only its title to goods sold, supplied or delivered to the Dealer. All other warranties are those of the relevant manufacturer. AOI assigns to the Dealer any warranties provided by its suppliers and manufacturers. The Dealer waives any right to legal action against AOI for damage caused by the goods sold, supplied or delivered by AOI, which includes and not limited to environmental damages. All warranty is void if there has been any misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation. The Dealer's sole and exclusive remedy will be the repair, replacement or refund of the purchase price paid for the product returned during the relevant manufacturer's warranty period and acceptance of warranty claim by the manufacturer. AOI DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSES. AOI WILL NOT, IN ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES SUFFERED BY THE DEALER AND IN NO EVENT WILL AOI'S LIABILITY, IF ANY, EXCEED THE NET SALE PRICE OF THE GOODS SOLD, SUPPLIED OR DELIVERED TO THE DEALER.

Default

If the Dealer is in default of any of these Terms and Conditions of Sale, AOI may, at its option, cancel any unexecuted portion of any order to which these Terms and Conditions of Sale apply and/or exercise any right or remedy which may be available to AOI at law. The Dealer will be in default under these Terms and Conditions of Sale if: (a) the Dealer fails to perform any covenant, term or condition contained herein or breaches any representation or warranty given by the Dealer to AOI; (b) the Dealer fails to give a required notice to AOI; (c) the Dealer is insolvent or the Dealer fails to pay debts as they come due.

Indemnification

The Dealer shall indemnify, hold harmless and defend AOI and its employees, officers, directors and agents from and against any action, cause of action, judgment or claim for damages to property (including environmental damages) or bodily injury, loss of life, liability of any nature (including the violation of any applicable laws or regulations in connection with the sale, transportation, installation, use or repair by the Dealer of the goods sold, supplied or delivered by AOI), costs, or expenses including reasonable legal fees to the extent caused by the negligent act, omission, willful misconduct or breach of these Terms and Conditions of Sale by the Dealer.

Severability

These Terms and Conditions of Sale will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any of the provisions contained in these Terms and Conditions of Sale are held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction; provided, however, that if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provisions will be severed from the remainder of these Terms and Conditions of Sale without affecting the enforceability or validity of the remaining provisions.

Non-Waiver

The failure of AOI to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the rights or remedies of AOI, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by AOI.

Governing Law

These Terms and Conditions of Sale are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflict of law provisions and the Dealer hereby irrevocably attorns to the jurisdiction of the courts of such province. All actions, regardless of form, arising out of or related to a transaction governed by these Terms and Conditions of Sale must be brought against AOI within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.