Insulspan Incorporated (“The Seller”) warrants to the original purchaser (“Owner”) of the project constructed using the Insulspan structural insulating panel (SIP) system (the “Product”) including all materials supplied by the Seller as accessories whether or not manufactured by the Seller that the Product will (a) meet the specifications set out in the Insulspan Sales Order, associated project drawings and the Insulspan Design Manual (the “Product Specifications”), as applicable; and (b) be free from any defect in materials and workmanship on the date of final delivery to the Owner or the Owner’s authorized representative.
This Limited Warranty includes accessory materials supplied as part of the Product Specification that are not manufactured by the Seller, but are provided by the Seller as required for installation of the Product:
The “Project Information and Data Form” must be completed by the Owner or the Owner’s authorized representative and returned at the time that the order is placed in order to activate the INSULSPAN SIP SYSTEM LIMITED WARRANTY. This form will contain the estimated delivery date which will be confirmed by shipping documents (“the date of final delivery”).
Upon delivery of the Product to the Owner, the Owner must inspect the Product for visible defects in the Product. If the Owner discovers a defect in material or workmanship, the Owner or the Owner’s authorized representative, must promptly notify the Seller in writing. In no event shall such notification be received by the Seller later than twenty (20) days from the “date of final delivery” to the Owner. The Seller must be notified at the address below and the Owner must include in the notice the following: (a) originals or copies of invoices and bills showing the cost of the Product; (b) the date of Purchase of the Product; (c) the date on which the defect was first noticed; and (d) the location and description of the circumstances under which the defect occurred or was first noticed.
Within a reasonable time after such notification, the Seller will correct any defect in material or workmanship by repairing or replacing the defective components of the Product identified. Owner shall be responsible for making accessible the affected Product. Such repair, including both parts and labor, is at the Seller’s expense. If the Seller is unable to repair the Product to conform to this warranty after a reasonable number of attempts, the Seller will provide at its option, one of the following: (a) replacement Product components, or (b) full refund of the purchase price for the affected portion of the Product supplied. These remedies are the Owner’s exclusive remedies for breach of warranty.
This portion of the Limited Warranty includes the following:
(a) Failure to provide structural performance in accordance with the “Product Specifications”, other than such visible defects in the Product in material or workmanship as are warranted under paragraph 2 above.
(b) Failure of molded expanded polystyrene (“EPS”) insulation core in the Product to meet minimum thermal resistance (“R-Value”) requirement in accordance with EPS product specification referenced in the Product Specifications.
This Limited Warranty is effective on the date of final delivery of the Product to the Owner and expires twenty (20) years after such date.
The seller does not warrant (a) any defects caused by installation of the Product that is not in strict accordance with the Product Specifications and the Insulspan Installation Guide; (b) damage caused to the Product by use of the building for purposes other than those for which the Product was designed; (c) damage caused by inadequate design, performance or maintenance of the heating, ventilation and air conditioning (HVAC) system for the building; (d) damage caused by terrorism; (e) damage caused by disasters such as weather fire, flood, wind, and lightning; (f) damage caused by unauthorized attachments or alterations; or (g) any other abuse or misuse by the Owner or at the direction of the Owner. This Limited Warranty is void if, in the sole judgment of the Seller, the performance of the Product has been impaired by either damage or alterations, including any limitations listed in the Product Specifications, which form part of this Limited Warranty.
In addition to the warranties set forth in the previous paragraphs, the Seller also warrants that it has good title to the Product free of any encumbrance, and that the Product shall be delivered free from the rightful claim of any third person for infringement of patent or copyright. The Seller will defend the Owner against any claim of infringement and will pay any resulting costs, damages, and attorney fees finally awarded, provided that (a) the Owner promptly notifies the Seller in writing of any claim, and (b) the Seller has sole control of the defense and all related settlement negotiations. If a claim arises, the Owner will allow the Seller, at the Seller’s option and expense, to procure the right for the Owner to continue using the Product, to replace or modify the Product so that it becomes non-infringing, or to grant the Owner a refund of the purchase price of the affected Product in exchange for a return of the infringing Product.
In no case shall the Seller be liable for any special, incidental or consequential damages based upon breach of warranty, breach of contract, negligence, strict tort, or any other legal theory. Such limitation of damages includes, but is not limited to, loss of profits, loss of savings or revenue, loss of use of the Product or any associated products, cost of capital, cost of any substitute equipment, facilities or services, down-time, the claims of any third parties and injury to property. This limitation does not apply to damages caused by breach of warranty of title and against infringement under paragraph four (4), nor to claims for personal injury. Some jurisdictions do not allow limits on warranties, or on remedies for breach of certain transactions. In such jurisdictions, the limits in this paragraph and in paragraph (6) may not apply; none the less any limitation of warranty or limitation of remedy herein shall be applicable to the fullest extent permissible by law.
This Limited Warranty is non-transferable and is for the exclusive benefit of the Owner. This Limited Warranty terminates immediately when the Owner ceases to own the building in which the Product has been installed.
Unless modified in a writing signed by both parties, this warranty is understood to be the complete and exclusive warranty between the parties, superseding all prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this agreement. No employee of the Seller or any other party is authorized to make any warranty in addition to those made in this warranty.
The Seller is not obligated under the terms of this Limited Warranty until the Owner has paid in full all invoices and charges for the Product supplied and services due and owing.
Failure by the Seller at any time to enforce any term or condition stated herein is not to be construed as a waiver by the Seller of its right to enforce that term or condition.
If the Product is delivered to an address in the United States, this Limited Warranty shall be governed by the laws of the State of Michigan and the laws of the United States. The Seller and the Owner hereby irrevocably consent to the jurisdiction of the courts of the State of Michigan. (b) If the Product is delivered to an address in Canada, this Limited Warranty shall be governed by the laws of the Province of Alberta and the laws of Canada. The Seller and the Owner hereby irrevocably consent to the jurisdiction of the courts of the Province of Alberta.
This agreement allocates the risks of product failure between the Seller and Owner. This allocation is recognized by both parties and is reflected in the price of the Product. Owner acknowledges that it has read this agreement, understands it, and is bound by its terms.