_edited.png)
Terms and Conditions
Icon Forming Systems
Terms and Conditions of Rental/Sale
(Terms”)
These Terms apply to the sale and/or rental of all Icon Forming Systems Incorporated (“Icon”) products (the “Product(s)”).
If Icon issues a quotation or proposal (“Quotation”) to its customer (“Customer”) that the Customer timely accepts by issuance of a purchase order or by acceptance of the Products (or by any other means acceptable to Icon, in Icon’s sole discretion), the Quotation and these Terms will constitute the entire agreement between Icon and the Customer with respect to the Products (collectively, the “Contract”). Otherwise, the entire Contract shall consist of Icon’s order acknowledgement and these Terms.
By issuing a purchase order against a Quotation or by accepting the Products, the Customer expressly agrees to be governed by these Terms and acknowledges that no other terms and/or conditions shall apply unless expressed in writing and signed by an authorized representative of Icon. Icon expressly rejects any additional, inconsistent, or conflicting terms proposed by Customer. Clerical errors in a Quotation issued by Icon are subject to correction in all cases by Icon.
1. Purchase Price or Rental Charge; Payment
Quoted prices or rental charges provided by Icon are only firm for orders placed against the applicable Quotation within 30 days of issuance and are valid only if all items, quantities, and sizes listed in the applicable Quotation or order acknowledgement are purchased or rented by the Customer and shipped within Icon’s normal production and shipping schedule. If any of the forgoing conditions are not satisfied, orders remain subject to revised pricing by Icon.
Quotation prices and rental charges do not include, but are subject to, taxes and all other governmental charges that may be imposed at any time, including sales, use and similar taxes. Icon shall invoice and Customer shall pay or reimburse Icon for any such amounts.
Purchase charges shall be invoiced at the time of shipment. Customer is responsible for payment of all made-to-order products, even if Customer cancels the order at any time and the products do not ship.
Rental charges shall be invoiced monthly, with charges beginning on the date of shipment and ending on the date the Products are returned to Icon’s designated facility, as shown on shipping documents.
Customer agrees to pay for a minimum of one month’s rental, with any additional partial months being pro-rated. For greater certainty and for the purposes of calculating the rental period, each week shall be assumed to have seven days and each month shall be assumed to have twenty-eight days.
Unless expressly agreed otherwise in the Quotation or order acknowledgement by Icon, Customer shall promptly pay each invoice upon receipt. All payments shall be made without set-off, deduction, or counterclaim.
Interest at the rate 18% per annum, or the maximum allowable by law, shall apply to balances on invoices 31 days past due until paid.
Customer understands and accepts that Icon charges a processing fee equivalent to 3.5% on all credit card payments. By accepting the Quotation, the Customer hereby authorizes Icon to charge the credit card on file in the event of any damage to or loss of the rental Products provided by Icon during the rental term, with such authorization extending to cover the costs associated with the repair or replacement of any rental Product that is damaged, lost, or not returned in the condition provided by Icon to the Customer, reasonable wear and tear excepted.
If Icon intends to charge the credit card on file under this authorization, Icon shall provide written notice to the Customer specifying the nature of the damage or loss, the estimated cost of repair or replacement, and any supporting documentation. If the Customer disputes the charges, the Customer shall notify Icon in writing within 10 days of receiving the notification.
This authorization is limited to charges directly related to the repair or replacement of the rental Products and shall not be used for any other purpose without the express consent of the Customer.
2. Delivery; Risk of Loss; Inspection and Claims
Unless expressly agreed in the Contract, Icon does not guarantee or assume any liability for failure to meet any delivery date proposed or requested by Customer or Icon.
Customer shall provide Icon with a requested delivery date at the time of order. Prior to the Customer’s order entering production, Icon will contact Customer to verify the requested delivery date and Customer shall, by electronic mail, fax, or letter, confirm in writing the requested delivery date. Icon will not begin production on the Customer’s order until this written confirmation is received from the Customer.
3. Customer Pick-up/3rd Party Carriers
At the time of order, Customers may arrange to pick up orders when available at identified Icon facilities and/or request Collect or 3rd party billing on a Customer-specified carrier if preferred (FOB Origin).
For LTL/parcel shipments requested Collect or 3rd party bill, Icon will make arrangements directly with the Customer-specified carrier. For truckload shipments, the Customer may make their own arrangements or provide carrier information for Icon to make the arrangements.
The following guidelines will also apply:
a. Accessory and Chemical Products
In the case of Customer pick up or Customer arranged freight, Icon will hold the ordered Products on its docks for a maximum of five (5) business days from the date of order.
If the Customer/Carrier fails to pick up the ordered Products by the end of the fifth business day, Customer agrees that either:
-
(i) by the end of the sixth business day, Customer will instruct Icon to arrange for freight and have the freight charges added to the Customer’s order and invoice;
-
(ii) if the Products are not made-to-order, the order will be cancelled and Customer agrees to pay Icon a restocking fee of 25% of the value of the order, which will be invoiced to the Customer;
-
(iii) if the Products are made-to-order, the order will be cancelled, Customer shall pay Icon the full price of the order and Icon shall have no further obligations to retail or store the Products.
b. Forming Products
In the case of Customer pick-up or Customer arranged freight, Customer shall provide Icon with a requested delivery date at the time of order.
Icon will contact Customer to verify the requested delivery date and Customer shall, by electronic mail, fax, or letter, confirm in writing the requested delivery date.
Icon will hold the ordered Products on its docks for a maximum of ten (10) business days from the date of order. If the Customer/Carrier fails to pick up the ordered Products by the end of the tenth business day, Customer agrees that either:
-
(i) by the end of the eleventh business day, Customer will instruct Icon to arrange for freight and have the freight charges added to the Customer’s order and invoice;
-
(ii) it will incur a $500.00 per day handling and storage charge that will be added to the Customer’s invoice until the order is picked up or delivered.
4. Ownership and Use of Rental Products
Icon shall retain title to all rental Products at all times. Customer shall have the option to purchase rental Products if permitted, and to the extent set forth, in the Contract, subject to these Terms.
Customer shall not make any alterations, additions, or improvements to, and shall not deface, remove, or cover any Icon markings on rental Products without Icon’s prior written consent.
Upon request, Customer shall advise Icon as to the exact location of rental Products and agrees not to move or relocate rental Products without Icon’s prior written consent.
Icon shall have the right to enter Customer’s premises or other location of the rental Products at reasonable times and with reasonable notice to Customer for the purposes of inspecting Icon rental Products.
Customer shall keep rental Products free and clear of all liens, levies, and encumbrances (other than those of Icon). Customer irrevocably authorizes Icon to execute and/or file a financing statement or other notice in any jurisdiction with respect to the lease created by the Contract.
For greater certainty, the rental Products do not include wood of any kind, except as part of a prefabricated panel or other prefabricated rental Product.
Customer shall be responsible for unloading, cleaning, assembling and erection of rental Products. Customer shall cause rental Products to be used only by competent operators in a safe and proper manner in compliance with all applicable laws, rules, regulations, in strict adherence to the manufacturer’s instructions (including maintenance) and solely for the purposes for which they are intended.
Customer agrees to promptly return the rental Products to Icon in good operating condition at the expiry of the rental period. Customer understands and accepts that rental charges shall continue to incur and be payable by the Customer until the Products are returned to Icon.
5. Limited Warranty
Icon warrants, for a period of 60 days from the date of shipment that Products and any associated application drawings and engineering services provided by Icon (“Ancillary Services”) will be free from defects in material and workmanship and, in the case of custom designed formwork, that the formwork will meet the specifications set forth in the design drawings approved by Icon and Customer.
Any claim under this warranty must be made in writing within such warranty period. If any Product and/or Ancillary Service covered by a timely claim are found to be defective, Icon will, within a reasonable time, make any necessary repairs or corrections or, at Icon’s option, replace the Product.
Unless pre-authorized by Icon in writing, Icon will not accept any charges for correcting defects or accept the return of any Product.
This warranty will not apply to any Products that have been subjected to misuse, neglect, storage damage, misapplication, accident, or any other damage caused by any person other than Icon, or that have not been maintained in accordance with Icon’s specifications.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AS TO THE PRODUCTS AND ANCILLARY SERVICES. ICON MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. THE REPAIR/REPLACEMENT REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
6. Limitation of Liability
Icon’s liability under any Contract with respect to the Products and the Ancillary Services shall in any event be limited to direct damages and then only to, at most, the purchase/rental price of the relevant Products paid by Customer.
Icon shall have no other liability to or through Customer whatsoever, whether based on breach of contract, tort, negligence, gross negligence, strict liability or otherwise.
IN NO EVENT SHALL ICON BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUES, LOST INCENTIVES OR BACK CHARGES) ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, THE PRODUCTS OR THE ANCHILLARY SERVICES.
7. Force Majeure
Icon shall not be responsible for delays in performance caused, directly or indirectly, by any act of God, accident, war, force of arms, fire, riot, labor dispute, strike, sabotage, civil commotion, act of terrorism, government action, transportation interruption, inability to obtain materials or labor, Customer’s failure or delay in approving any design or other drawings or any other acts beyond Icon’s reasonable control.
8. Risk of Loss and Insurance
Customer shall bear the sole risk of loss/damage to Products and remain liable to Icon, regardless of whether insured, from the date rental Products are shipped to Customer until the Products are returned to Icon.
Customer shall, at its expense, maintain rental Products in good repair, condition and working order, with normal wear and tear excepted. In the event of any loss/damage to rental Products, Customer shall place the same in good repair, condition and working order, or, if Customer fails to do so, shall, at Icon’s election, pay Icon the full, undepreciated replacement cost of the Products plus all unpaid rent through the date of payment.
Customer shall keep rental Products insured against all risk of loss/damage by customary property and casualty insurance coverage for the full un-depreciated replacement value (new) and shall carry public liability insurance, both personal injury and property damage, covering the rental Products and their use.
All such insurance shall:
-
(a) name Icon as an additional insured/loss payee;
-
(b) provide Icon not less than 30 days’ written notice of cancellation; and
-
(c) be of a type and form with terms and amounts, and with companies, reasonably satisfactory to Icon.
9. Indemnification by Customer
Customer shall be responsible for, indemnify, defend and hold Icon harmless from and against all liabilities, claims, judgments, costs, damages and expenses (including reasonable attorney’s fees and expenses), including for personal injury, death, property damage or otherwise, arising out of or relating to the use of the Products and/or the Ancillary Services and any other act, or omission by Customer or any subcontractor, agent, sublessee, employee, or purchase of or from Customer with respect to the Products and/or the Ancillary Services, unless resulting from the gross negligence or willful misconduct of Icon.
If Customer subleases rental Products or resells purchased Products, Customer shall include language in an agreement with its purchaser and/or sublessees that makes these Terms (including the limitations set forth in paragraph 5) binding on Customer’s sublessee or purchasers and any subsequent purchasers of the Products, including binding sublessee or purchaser to these obligations of indemnification in addition to Customer.
10. Documentation; Product Data
Any specifications, plans, drawings or application recommendations furnished by Icon to Customer (“Documentation”) are provided only as a service to Customer to conceptually illustrate the assembly and use of Products.
Such Documentation is not intended to be fully directive nor to cover all engineering details on Products, on products or materials not furnished by Icon, or on their interconnection.
As Icon does not control jobsite assembly, procedures, grade or quality of materials, or equipment supplied by others, it is the responsibility of Customer to integrate Documentation into composite drawings and information suitably complete for construction purposes.
In the case of custom designed framework, design drawings will be furnished by Icon for Customer’s approval prior to any fabrication by Icon. Icon shall not be responsible for any deviations, changes or alterations to the recommended assembly details described in forming layout drawings unless such deviations, changes or alterations are illustrated in a revised design drawing provided by Icon or are approved in writing by Icon.
Icon shall at all times retain ownership of all documentation and other technical data (“Product Data”) with respect to the Products and the Ancillary Services, and unless duly authorized by Icon, Customer shall not disclose any such Product Data to any other person.
Upon Icon’s request, Customer promptly shall return to Icon all copies of Product Data.
11. Default; Termination
If Customer fails to timely pay any invoice or to perform any other obligation under the Contract, or if Icon deems the Products to be left in an insecure state or determines that any rental Products are at risk of being damaged, lost or removed from Customer’s control, Customer shall pay immediately upon notice from Icon an amount equal to the sum of:
-
(i) any unpaid invoices and
-
(ii) all non-invoiced and unpaid amounts, including rental charges, through the later of the date of payment or the return of the Products.
In such event, all rights of Customer in the rental Products shall terminate immediately and absolutely and, upon any termination (whether by expiration of the rental period, Customer’s failure to perform any obligation under the Contract or otherwise), Icon shall have the right, without notice or demand, to take possession of the rental Products, wherever located, at the sole expense of Customer.
Notwithstanding, Customer shall promptly return the rental Products, at Customer’s expense and at Icon’s instruction, and pay for any damage to the Products, excluding any ordinary wear and tear, as determined by Icon.
12. Expenses
Customer shall reimburse Icon’s expenses (including, but not limited to, court costs, interest and legal fees and expenses on a substantial indemnity basis) in collecting any amounts owed by Customer arising out of the Contract, including, but not limited to, expenses incurred by Icon in protecting its rights under the Contract and/or recovering and/or repairing any rental Products.
13. Lien Rights
Where applicable, Icon reserves the right to assert and preserve any and all lien rights under the Construction Act (Ontario) or any other applicable laws, even after the Products are delivered to the construction site of the Customer.
The Customer acknowledges and agrees that Icon may file a claim for a lien against the construction site or the improved premises, as permitted by law, for any unpaid rental charges or other amounts due under an applicable Contract.
The Customer shall cooperate with Icon in taking any necessary actions to perfect and enforce such liens, and the Customer consents to the filing of any required notices and documentation. Customer further agrees to provide Icon with any information or documents reasonably requested by Icon to facilitate the preservation and enforcement of lien rights.
14. Compliance with Governmental Requirements
To apply, any standards or requirements of law or governmental regulations must be expressly and specifically set forth in writing in the contract. Otherwise, Icon shall have no liability or obligation to Customer with respect to the failure of the Products to comply with any such standards or requirements.
15. Governing Law and Exclusive Jurisdiction
The Contract shall be governed by, and construed in accordance with, the laws of the Province of Ontario without giving effect to the conflict of law principles, and shall be binding upon any and all successors and assigns of the parties hereto and shall not be construed in whole or in part against any party solely because of the fact that the party drafted the Contract.
The exclusive jurisdiction for any dispute arising out of the Contract shall be in a court of competent jurisdiction located in Ontario.
16. Miscellaneous
The Contract may not be amended except in writing and signed by an authorized representative of Icon.
Customer may not cancel orders under this Contract for customized Products without Icon’s written consent.
Customer shall not assign the Contract or sublease any rental Products without Icon’s prior written consent and the full release of Icon from any obligations with respect to the Products.
Any provision of the Contract that is invalid under applicable law or court order shall not in any way invalidate or affect the remaining provisions of the Contract.