Fab-Form Terms of Sale

• COMPLETE TERMS: All sales by Fab-Form are governed by these terms and conditions of sale ("Terms"), together with other sales terms, if any, agreed to by the Buyer and Fab-Form in writing ("Sales Terms"), such as those on written Sales Orders, Invoices and Quotations. In the event of an inconsistency, the Terms shall prevail. These Terms, together with the Sales Terms, if any, are referred to herein as the "Agreement". These Terms constitute the entire agreement between the Buyer and Fab-Form regarding the sale of products ("Products") by Fab-Form 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 Fab-Form or the Buyer, the acceptance is conditional on the Buyer's acceptance of these terms and conditions. Fab-Form 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 Fab-Form. Fab-Form'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 Fab-Form.
• ORDERS / ORDER CHANGES. Orders for Products will be submitted by the Buyer to Fab-Form in writing and in English using Fab-Form's then current product specifications.
• 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 Fab-Form in writing. Fab-Form may adjust the price of any Product upon at least thirty (30) days prior notice unless otherwise agreed to by the Buyer and Fab-Form in writing. Payment is due according to the terms set forth on the invoice issued by Fab-Form. If the Buyer fails to pay any sum owed hereunder when due, interest shall accrue and be payable by the Buyer to Fab-Form on such sum at the rate of 1.5% per month or the highest rate allowed by law, whichever is lower. If Fab-Form, 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 Fab-Form 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 Fab-Form has any doubt at any time as to the Buyer's financial situation, Fab-Form, 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 Fab-Form, 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.
• NO DEDUCTION. The Buyer shall not be entitled to deduct from the price invoiced to it by Fab-Form the amount of any claim asserted by the Buyer against Fab-Form, unless such claim has been allowed in writing by Fab-Form. 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. If the Buyer is located in the USA and if the transaction cost is greater than $2,000, the Buyer must supply a Federal Tax ID number to Fab-Form for the US Government.
• TITLE AND RISK. Fab-Form 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 Fab-Form'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 Fab-Form 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, Fab-Form will arrange for transportation of the Products from Fab-Form'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) Fab-Form 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 off-loading 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 Fab-Form 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) Fab-Form 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, Fab-Form 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 Fab-Form'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 Fab-Form 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 Fab-Form does not receive such notice of rejection within the Acceptance Period. Fab-Form shall be afforded a reasonable opportunity to repair or replace non-conforming Product at Fab-Form's option, provided that, if Fab-Form 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.
• RETURN OF PRODUCT: Stock Products may be returned within 90 days of purchase. Special Order Products cannot be returned. A RMA (Return Merchandise Number) will be issued by Fab-Form authorizing said return. Fab-Form is not responsible for freight costs associated with Product returns. Restocking fee is 8% which may be adjusted upon inspection of Product returned, based on damage to Product (including packaging). Returns must be received within 14 days of Fab-Form's date of RMA issuance.
• PRODUCT PROTECTION. To avoid Product damage and/or mold growth, the Buyer shall protect all Products from physical damage, moisture and ultraviolet light exposure according to industry customs 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 Fab-Form 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 Fab-Form 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 Fab-Form's suppliers, energy or transportation shortages, or any other cause whether or not similar to the causes listed above, beyond Fab-Form's reasonable control, Fab-Form reserves the right to cancel the affected order without any liability to the Buyer whatsoever. In no event shall Fab-Form be obligated to purchase material from others to enable Fab-Form to deliver Products to the Buyer hereunder.
• WAIVERS AND RELEASES. Fab-Form assumes no responsibility regarding the Buyer's use of its Products or any other third party Products resold by Fab-Form. It is the responsibility of the Buyer and any others who use or install the Products to comply with all applicable regulations and building code requirements concerning the use of the Products. It is further the responsibility of the Buyer and any others who use or install the Products to research and understand safe methods of use and handling of the Products.
  
  INSTALLATION WAIVER AND RELEASE. The Buyer acknowledges and assumes all responsibility for the safe installation of Products, and hereby RELEASES, REMISES AND FOREVER DISCHARGES Fab-Form, Fab-Form's affiliates and each of their respective directors, officers, employees and agents (collectively, the "Released Fab-Form 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 of Products by any person from and after being purchased by the Buyer from Fab-Form, 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 Fab-Form 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 of Products 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. 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 responsibility for job-specific engineering for any and all projects in which the Products are used after being purchased by the Buyer from Fab-Form, including, but without limiting the generality of the foregoing, any and all engineering work done by any and all licensed structural engineers and any and all engineering relating to job-specific concrete reinforcing and design specifications, whether done directly by or indirectly for the Buyer, and hereby RELEASES, REMISES AND FOREVER DISCHARGES the Released Fab-Form 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 Products are used by any person from and after being purchased by the Buyer from Fab-Form, 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 Fab-Form 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 of the Products: The installer is 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 structural engineer, licensed for the jobsite location and specifications.
  
  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, 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). Fab-Form 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. The Buyer shall defend, indemnify and hold harmless each of the Released Fab-Form 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
  Fab-Form Products Limited Warranty: Fab-Form 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 Fab-Form and upon Fab-Form being satisfied that the Products have Defects, Fab-Form will replace the defective Products or refund the purchase price, at Fab-Form's option.
  
  Third-Party Products' Limited Warranty: Products supplied by and manufactured for third parties and resold by Fab-Form are warranted to comply with the warranty and specifications of the original manufacturer or producer of the Products. Should any Product sold hereunder be found not to meet the foregoing warranty, Fab-Form will take such action as is specified in the warranty of the original manufacturer or producer, or, at Fab-Form's election, make a fair allowance therefore. Written notice of any claim under this warranty must be given to Fab-Form 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 Fab-Form 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.
  
  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, Fab-Form 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 Goods Act 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 Fab-Form Parties FROM AND AGAINST ANY AND ALL CLAIMS (as the term "Claims" is defined above) that any of the Released Fab-Form 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 Fab-Form shall be limited to replacement by Fab-Form of the Products involved or, at Fab-Form's option, return by Fab-Form to the Buyer of the purchase price of the Products involved in such breach. Fab-Form'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 FAB-FORM 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 FAB-FORM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS BY THE BUYER OR ANY THIRD PARTY. ANY LEGAL ACTION AGAINST FAB-FORM 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, (a) Fab-Form 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) Fab-Form may immediately terminate this Agreement, if the Buyer fails to cure such breach within ten (10) days after receipt of written notice from Fab-Form describing such breach. In the event of a termination, all outstanding payment obligations or other indebtedness of the Buyer to Fab-Form shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance by Fab-Form of less than the full amount due shall not be a waiver of any of Fab-Form's rights under this Agreement or applicable law. In any event, the Buyer shall remain liable for all loss and damage sustained by Fab-Form because of the Buyer's breach. Notwithstanding any provision in this Agreement, Fab-Form 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 Fab-Form. In addition, in the event that the Buyer fails to make any payment when due, Fab-Form shall have the right to offset any and all outstanding payment obligations or other indebtedness of the Buyer to Fab-Form against any outstanding payment obligations or other indebtedness that Fab-Form or any of its affiliates may owe the Buyer.
• 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 Fab-Form 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 Fab-Form 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.
• 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 Fab-Form as determined by the arbitrator depending on the arbitration's outcome.
• GENERAL: These Terms, as published on Fab-Form's website www.fab-form.com/terms.php at the time of sale, are the official terms and conditions of sale between Fab-Form and the Buyer and may be amended from time to time without notice at Fab-Form's sole discretion.

Last Updated: 2016-06-31