Warranty

TERMS & CONDITIONS 

April 19, 2024 

INNOVATIVE ENERGY, INC. (THE “SELLER”) SHALL HAVE THE RIGHT TO AMEND, REVISE, AND UPDATE THESE TERMS AND CONDITIONS AT ANY TIME. 

I. Insultation Materials Warranty – Seller 

  1. Seller’s Warranty & Warranty Exclusions. Subject to the Warranty Exclusions (as defined below) and provided any and all amounts due to Seller have been made by the person or entity purchasing (the “Buyer”) the material(s) (the “Materials”), Seller shall provide a limited warranty against defects in any Materials manufactured by Seller for a period of five (5) years after the Delivery (as defined below) (“Seller’s Warranty”). Seller’s Warranty does not include (i) the effects of normal damages brought by wear and tear or those caused by the faulty installation, operation, and/or maintenance of the Buyer, its customers, or any other persons, (ii) any negligence caused by the Buyer, its customers, or any other persons, (iii) any cancellation or diminution of any warranty of Materials while held in Seller’s possession during any delinquency of the Buyer’s payment obligations to Seller, and (iv) the failure of the Buyer, its customers, or any other persons to install the Materials in strict accordance with Seller’s written instructions, including, but not limited to, installation in approved buildings and the guidance for AstroShield & AstroArmour Materials provided in Exhibit A attached hereto and incorporated herein ((i), (ii), (iii), and (iv) the “Warranty Exclusions”). 
  2. Liability. Seller’s liability with respect to Seller’s Warranty is limited to replacement of the defective Materials. 
  3. Exclusive Remedy. Buyer must make its claim for breach of Seller’s Warranty within five (5) years of the Delivery and any claim not made within the designated period shall be irrevocably waived and Seller have no further liability. 

II. Insulation Materials Warranty – Third Parties 

  1. Third Party Warranties. Subject to the Warranty Exclusions, any warranties attaching to the Materials manufactured by a third party shall be transferred and assigned to the Buyer, if applicable.  

III. General Terms & Conditions 

  1. No Warranties. EXCEPT AS PROVIDED FOR IN SECTIONS I AND II, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE MATERIAL(S), INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) WARRANTY OF TITLE, AND/OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ANY OF THE FOREGOING IS EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. 
  2. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER, THE BUYER’S PERSONNEL, OR ANY OTHER THIRD PARTY FOR ANY LABOR COSTS, LOSS OF USE, REVENUE OR PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER BY THE BUYER FOR THE MATERIAL(S) SOLD HEREUNDER. 
  3. Waiver. No statement or recommendation made, or assistance given by Seller, Seller’s affiliates or either of the foregoing’s shareholders, directors, officers, employees, contractors, or representatives, whether oral or in any communication or documentation, to Buyer, its customers, or any other persons in connection with the purchase, use, or installation by Buyer, its customers, or any other persons, of any Materials sold hereunder, shall constitute a waiver by Seller of any provision of these Terms & Conditions and no such statement, recommendation, or assistance that is not expressly required by the provisions of these Terms & Conditions shall subject Seller to any liability of any nature whatsoever.
  4. Delivery. Seller shall use commercially reasonable efforts to ensure the Materials are delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability (the “Delivery”). Seller shall deliver the Materials to Buyer using Seller’s standard methods for packaging and shipping such Materials. Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Materials to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Materials shipped whether such shipment is in whole or is a partial fulfillment of Buyer’s purchase order. If for any reason Buyer attempts to cancel the purchase order or fails to accept delivery of any of the Materials, then (i) risk of loss related to the Materials shall transfer to Buyer, and (ii) Buyer shall be liable for all related costs and expenses related to such wrongful cancellation and/or wrongful non-acceptance. Seller shall not be liable for any delays, loss, or damage, whether in transit or storage.  
  5. Title and Risk of Loss. Title to and risk of loss related to the Materials shall transfer to Buyer at the time the Materials are in the possession of the applicable transportation carrier selected by Seller, in Seller’s sole discretion. As collateral security for the payment of the Materials, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Materials, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Indiana Uniform Commercial Code. 
  6. Replacements & Returns.  
    • Custom Materials – Replacements for Nonconforming Goods. Buyer will be deemed to have accepted custom Materials unless it notifies Seller in writing of any Nonconforming Goods (as defined herein) within thirty (30) days (the “Inspection Period”) and furnishes written evidence or other documentation as required by Seller. “Nonconforming Goods” shall only mean unused and undamaged custom Materials in their original packaging that are different than what is identified in Buyer’s purchase order and shall not include any discrepancy in the quantity of the Materials. If Buyer notifies Seller of any Nonconforming Goods within the Inspection Period, Seller shall replace the Nonconforming Goods with conforming custom Materials, less the cost of any shipping and handling. Seller’s exercise of such remedy is conditioned upon Buyer shipping, at its expense, the Nonconforming Goods to Seller at the address provided for in the purchase order. Buyer acknowledges and agrees that the remedies set forth herein are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided for within this Article III(F)(a), Buyer has no right to return custom Materials purchased from Seller.  
    • Stock – Refund within Inspection Period. Buyer will be deemed to have accepted stock Materials unless it notifies Seller (i) in writing, (ii) within the Inspection Period, and (iii) furnishes written evidence or other documentation as required by Seller of the Materials being (a) undamaged and (b) in their original packaging (the “Conditions”). If Buyer meets such Conditions, Seller shall refund the Materials, less the cost of any shipping and handling. Seller’s exercise of such remedy is conditioned upon Buyer shipping, at its expense, the Materials to Seller at the address provided for in the purchase order. Buyer acknowledges and agrees that the remedies set forth herein are Buyer’s exclusive remedies for any issues with any stock Materials.  
  7. Payment Terms. Buyer shall pay all invoiced amounts due to Seller in accordance with the terms and conditions stated on Seller’s invoice and to the extent the Seller’s invoice conflict with any terms of a Buyer’s purchase order, Seller’s invoice shall control. Buyer shall pay interest on all late payments at the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms & Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days, Seller shall be entitled to terminate any and all agreements and purchase orders between Seller and Buyer and/or suspend the delivery of any Materials. 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. 
  8. Miscellaneous
    • Attorney Fees. If any legal action or proceedings are brought by either the Seller or the Buyer, the prevailing party shall be reimbursed for all reasonable attorney’s fees and costs in addition to other damages awarded.   
    • Governing Law & Venue. These Terms & Conditions shall be governed in all respects by, and construed in accordance with, the laws of the state of Indiana and neither the Uniform Commercial Code nor the United Nations Convention on Contracts for the International Sale of Goods shall apply. All proceedings arising in connection with these Terms & Conditions shall be tried and litigated only in the state or federal courts sitting in Lake County, Indiana, which the Seller and the Buyer hereby submit to the jurisdiction of and waive any and all rights to request a transfer from. 
    • Successors and Assigns. The covenants and conditions contained in these Terms & Conditions shall apply to and be binding upon the Seller and the Buyer and each of the foregoing’s heirs, legal representatives, successors, and permitted assigns. 
    • Severability. Whenever possible, each provision of these Terms & Conditions shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision in such jurisdiction or the enforceability of such provision in any other jurisdiction. The Seller and the Buyer hereby stipulate and declare they will use commercially reasonable efforts to employ an alternative means to achieve the same or substantially the same result as that intended by the provision held to be invalid, illegal or unenforceable.  
    • Entire Agreement. Except as otherwise expressly set forth herein, these Terms & Conditions embodies the complete agreement and understanding among the Seller and the Buyer with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements, or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. No modification, amendment, or waiver of any provision of these Terms & Conditions will be effective, unless such modification, amendment, or waiver is approved in writing by the Seller. 

EXHIBIT A 

AstroShield & AstroArmour Materials 

The following, while not comprehensive, will void Seller’s Warranty if not followed: 

  • Installation Instructions:  https://innovativeenergy.com/wp-content/uploads/2019/11/AstroShield_brochure-1.pdf
  • AstroShield and AstroArmour products should always be stored in a clean dry environment with the rolls left in the poly bags they came in.  
  • Never install AstroShield or AstroArmour over or near defective or exposed electrical wiring nor apply where chemicals and off gassing products are present. 
  • Although AstroShield and AstroArmour products have UV and Thermal blockers built-in, Seller’s Warranty does not cover installation in open or exposed applications such as lean-to’s and open sided animal confinement buildings.