Terms

These Commercial Terms and Conditions of Sale (“Sales Terms”) govern sales of products by Dryfoam Corporation (“Dryfoam”) to a customer (“Customer”).

These Sales Terms are intended primarily for commercial, industrial, institutional, governmental, and professional customers. They do not govern the appointment or conduct of an authorized distributor or reseller except to the extent expressly incorporated into a separate written channel-partner agreement.

1. Contract Formation

Merely requesting information or requesting a quotation does not constitute acceptance of these Sales Terms.

These Sales Terms become part of a transaction when:

• Customer accepts a Dryfoam quotation incorporating them;
• Customer submits an order referencing a Dryfoam quotation or these Sales Terms;
• Dryfoam accepts Customer’s order in writing;
• The parties execute an agreement incorporating them; or
• Dryfoam ships the ordered products.

An automated receipt, payment receipt, preliminary confirmation, or notice that an order was received is not necessarily acceptance.

An order becomes binding on Dryfoam only when Dryfoam:

• Issues a written order acknowledgment accepting it;
• Signs an applicable agreement; or
• Ships the product.

Dryfoam may reject an order before acceptance because of product availability, credit concerns, inaccurate information, suspected fraud, legal restrictions, inability to satisfy requested specifications, or other legitimate business reasons.

2. Order of Precedence

If transaction documents conflict, the following order applies:

1. A written agreement signed by authorized representatives of Dryfoam and Customer;
2. The face of the applicable Dryfoam quotation or order acknowledgment;
3. These Sales Terms;
4. An expressly incorporated Dryfoam product data sheet;
5. Other Dryfoam website or marketing content.

A higher-ranked document controls only to the extent of an actual conflict.

Dryfoam objects to additional or conflicting terms contained in a Customer purchase order, vendor portal, specification, acknowledgment, or other Customer document.

Customer terms do not apply unless an authorized Dryfoam representative expressly accepts them in a writing signed by Dryfoam.

Dryfoam’s acceptance of payment, commencement of work, or shipment does not constitute acceptance of Customer’s additional legal terms.

Dryfoam may accept administrative information from a purchase order, including quantities, addresses, delivery instructions, and internal purchase-order numbers, without accepting Customer’s standard legal provisions.

3. Product Specifications and Changes

Products will materially conform at delivery to specifications expressly stated in the applicable accepted quotation or incorporated product data sheet.

Dryfoam may make nonmaterial changes in:

• Packaging;
• Color;
• Labeling;
• Component sourcing;
• Manufacturing method;
• Product appearance; or
• Configuration.

Dryfoam will not make a change that materially reduces an expressly agreed product specification without Customer’s consent.

General website descriptions, illustrations, sales presentations, samples, test descriptions, and marketing materials do not modify an accepted specification unless expressly incorporated into the transaction documents.

4. Pricing

Unless otherwise stated:

• Prices are in U.S. dollars;
• Prices exclude freight, insurance, handling, installation, taxes, duties, tariffs, customs charges, and brokerage fees; and
• Prices apply only to the quantities and scope stated in the quotation.

Dryfoam may correct obvious typographical, calculation, pricing, or product-information errors.

If an error affects an unfulfilled order, Dryfoam will notify Customer and allow Customer to accept the correction or cancel the affected portion without cancellation charges.

5. Quotations

Unless expressly designated as an estimate, a quotation remains valid through its stated expiration date.

Dryfoam may withdraw or revise a quotation before acceptance if:

• The quotation contains an obvious error;
• Customer changes the requested scope;
• Customer-provided information was materially inaccurate or incomplete; or
• Extraordinary changes occur in freight, tariffs, duties, taxes, materials, legal requirements, or other costs outside Dryfoam’s reasonable control.

Dryfoam will promptly notify Customer of a withdrawal or proposed revision.

Acceptance of a quotation does not guarantee availability until Dryfoam accepts the corresponding order.

6. Taxes and Government Charges

Customer is responsible for sales, use, excise, import, customs, environmental, value-added, and similar taxes or government charges arising from the transaction, except taxes imposed on Dryfoam’s net income.

A Customer claiming exemption must provide valid exemption documentation within the time required by Dryfoam or applicable law.

7. Payment

Payment terms are stated in the applicable quotation, invoice, order acknowledgment, or signed agreement.

Dryfoam may require:

• A deposit;
• Advance payment;
• Credit approval;
• A letter of credit;
• Personal or corporate guaranty;
• Milestone payments; or
• Other reasonable payment assurance.

Unless prohibited by law, overdue undisputed balances accrue interest at the lesser of:

• One and one-half percent per month; or
• The maximum rate permitted by law.

Customer will reimburse Dryfoam for reasonable costs incurred in collecting overdue undisputed amounts, including reasonable attorneys’ fees, to the extent permitted by law.

Dryfoam may suspend production, shipment, credit privileges, or further performance if:

• An undisputed payment is overdue;
• Customer exceeds an approved credit limit; or
• Dryfoam reasonably determines that Customer’s ability to pay has materially deteriorated.

8. Changes and Cancellation

After Dryfoam accepts an order, Customer may not cancel or modify it without Dryfoam’s written consent.

Dryfoam may condition approval on payment for:

• Completed products;
• Work in progress;
• Committed materials;
• Noncancelable supplier obligations;
• Custom packaging;
• Technical work;
• Restocking;
• Administrative costs; and
• Other reasonable costs caused by the change or cancellation.

Custom, special-order, project-specific, expedited, international, or discounted pilot orders may be noncancelable once accepted.

9. Shipping and Delivery

Production Lead Time: Approximately 30 days after receipt of order (“ARO”), unless otherwise stated in the applicable quotation or order acknowledgment.

Shipping Point: FOB Shipping Point, Boston, Massachusetts, USA.

All shipping, freight, handling, and transit-insurance costs are the responsibility of the Customer unless otherwise stated in writing.

Shipping terms, estimated shipment dates, and any special delivery requirements will be specified in the applicable quotation, order acknowledgment, or other transaction document. All dates are estimates unless Dryfoam expressly guarantees a date in writing.

Unless otherwise agreed in writing:

• Delivery occurs when Dryfoam delivers the products to the carrier at the designated shipping point.
• Risk of loss passes to the Customer upon delivery to the carrier.
• Title passes to the Customer upon Dryfoam’s receipt of full payment, to the extent permitted by law.
• The Customer is responsible for arranging and maintaining transit insurance.

Dryfoam may make partial shipments and invoice each shipment separately.

At the Customer’s request and expense, Dryfoam may arrange special freight services, including:

• Expedited shipping;
• Lift-gate service;
• Appointment delivery;
• Limited-access delivery;
• Inside delivery;
• Transit insurance; and
• Other special handling or delivery services.

Dryfoam is not liable for delays caused by carriers or circumstances beyond its reasonable control.

10. Inspection and Shipment Claims

Customer must inspect the shipment promptly.

Visible damage, shortage, or irregularity should be noted on the carrier’s delivery receipt before acceptance.

Customer must preserve damaged products, packaging, photographs, shipping records, and other relevant evidence.

Customer must report:

• Visible freight damage immediately;
• Concealed freight damage within the carrier’s claim period;
• Incorrect products, shortages, or reasonably discoverable discrepancies within seven business days after delivery; and
• Latent product defects within the applicable warranty period.

Failure to report a visible or reasonably discoverable discrepancy within seven business days constitutes acceptance of the shipment, except where prohibited by law.

Freight damage is not necessarily a manufacturing defect.

Dryfoam may assist with a carrier claim, but responsibility for filing and pursuing the claim depends on the shipment terms and carrier rules.

11. Returns

Unused and unopened standard products in original packaging are eligible for return within 30 days after delivery. Dryfoam does not cover shipping for returns.

Every return requires Dryfoam’s prior written authorization, and a 15% restocking fee of the order value. For example if $1000 is returned, $850 is refunded.

The following are nonreturnable unless Dryfoam expressly agrees otherwise:

• Custom products;
• Special-order products;
• Project-specific products;
• Discounted pilot or demonstration products;
• Opened or repackaged products;
• Installed, deployed, or used products;
• Products exposed outdoors or to process conditions;
• Contaminated products;
• Crushed, punctured, torn, altered, or damaged products;
• Improperly stored products; and
• Products missing or displaying altered identification or exposure indicators.

A product’s ineligibility for voluntary return does not automatically eliminate a valid claim for a defect that existed at delivery.

Unless the return results from Dryfoam’s confirmed error or a covered warranty defect, Customer is responsible for return freight, insurance, and risk of loss.

Dryfoam may apply a reasonable restocking or inspection fee disclosed at the time the return is authorized.

Approved refunds will ordinarily be processed within 10 business days after receipt and inspection.

Original freight, expedited-service, handling, customs, and similar charges are nonrefundable unless the return results from Dryfoam’s error or a covered warranty defect.

12. Limited Product Warranty

Dryfoam warrants to the original commercial purchaser that, at delivery, products will:

• Materially conform to specifications expressly stated in the accepted quotation or incorporated product data sheet; and
• Be free from material defects in materials and workmanship.

The warranty continues for two years from delivery unless a different period is stated in the applicable transaction documents.

The warranty applies only to products purchased directly from Dryfoam or an authorized Dryfoam distributor or reseller.

13. Warranty Exclusions

The limited warranty does not cover failure, deterioration, or damage caused by:

• Improper storage;
• Failure to follow Dryfoam instructions;
• Incorrect installation;
• Crushing, puncturing, tearing, abrasion, or impact;
• Contamination;
• Exposure to incompatible substances;
• Unauthorized repackaging, alteration, or repair;
• Improper transportation after risk of loss passes;
• Use outside stated specifications;
• Fire, explosion, flooding, vandalism, accident, or abnormal weather;
• Ordinary cosmetic fading or discoloration that does not materially impair function; or
• Continued use after damage should reasonably have been identified.

A mesh-bag ultraviolet indicator, discoloration, packaging condition, inspection records, or other reasonable evidence may be considered in determining product use, exposure, storage, and eligibility.

No single indicator is necessarily conclusive where credible contrary evidence establishes the actual product condition.

14. Warranty Claims and Remedy

Customer must notify Dryfoam promptly after discovering a suspected defect and within the warranty period.

A claim should include:

• Order or invoice number;
• Product identification and quantity;
• Delivery and installation dates;
• Description of the defect;
• Photographs;
• Storage and installation information; and
• Samples or access for inspection when reasonably requested.

Customer must preserve the product and relevant packaging.

If Dryfoam confirms warranty coverage, Dryfoam will, at its option:

• Repair the product;
• Replace the product;
• Provide a commercially reasonable substitute; or
• Refund or credit the price paid for the affected product.

These are Customer’s exclusive remedies for breach of the limited warranty.

Unless Dryfoam expressly agrees otherwise, warranty remedies do not include removal, site preparation, installation, reinstallation, labor, equipment rental, shutdown, engineering, travel, disposal, or testing costs.

15. Disclaimer of Other Warranties

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS LIMITED WARRANTY IN THESE SALES TERMS IS THE ONLY WARRANTY PROVIDED BY DRYFOAM. DRYFOAM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

DRYFOAM DOES NOT WARRANT THAT ITS PRODUCTS WILL PREVENT OR EXTINGUISH EVERY FIRE, ELIMINATE EVERY VAPOR RELEASE, OR PREVENT EVERY INJURY, EQUIPMENT FAILURE, ENVIRONMENTAL RELEASE, OR PROPERTY LOSS.

Nothing in these Sales Terms excludes a warranty or remedy that applicable law does not permit the parties to exclude.

16. Product Application and Customer Responsibilities

Dryfoam products are intended to serve as passive vapor- and fire-risk-reduction components in appropriately evaluated applications.

They do not replace legally required:

• Fire-suppression systems;
• Fire detection and alarm systems;
• Emergency-response plans;
• Secondary containment;
• Ventilation;
• Inspection and maintenance;
• Training;
• Personal protective equipment; or
• Other engineering and administrative controls.

Unless expressly provided under a separate signed services agreement, information supplied by Dryfoam constitutes general product and application guidance and not site-specific professional engineering.

Customer is responsible for:

• Determining product suitability;
• Verifying measurements and quantities;
• Obtaining qualified engineering and safety review;
• Following current Dryfoam instructions;
• Proper storage, handling, installation, inspection, and maintenance; and
• Compliance with applicable laws, permits, codes, and site requirements.

17. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, DRYFOAM AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, DISTRIBUTORS, AND AGENTS WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES.

Excluded damages include:

• Lost profit or revenue;
• Loss of use;
• Business interruption;
• Production loss;
• Lost contracts or opportunities;
• Shutdown and delay costs;
• Loss of data;
• Environmental-response costs; and
• Reputational loss.

The exclusion applies regardless of legal theory and even if Dryfoam was advised that such damage was possible.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, DRYFOAM’S TOTAL AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO DRYFOAM FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM.

These limitations apply even if a limited remedy fails of its essential purpose.

Nothing limits liability to the extent applicable law prohibits limitation.

18. Force Majeure

Dryfoam is not liable for delay or failure caused by circumstances outside its reasonable control, including:

• Natural disasters;
• Severe weather;
• Fire or explosion;
• War, terrorism, or civil unrest;
• Labor interruption;
• Carrier, port, or transportation disruption;
• Utility or communications failure;
• Cyberattack affecting essential operations;
• Supplier failure;
• Raw-material shortage;
• Government action;
• Sanctions;
• Embargo;
• Tariffs;
• Import or export restrictions; and
• Changes in law.

Performance time will be extended for a commercially reasonable period.

Dryfoam may reasonably allocate limited products or materials among customers.

If continued performance becomes commercially impracticable, either party may cancel the unperformed portion. Customer remains responsible for completed, delivered, or specially committed products and costs.

19. Export and Legal Compliance

Customer will not export, reexport, transfer, purchase, or use products in violation of applicable sanctions, export controls, customs rules, anti-bribery laws, or other applicable laws.

Unless otherwise agreed, Customer is responsible for:

• Import approvals;
• Local permits and product approvals;
• Acting as importer of record;
• Duties, taxes, tariffs, and brokerage;
• End-use and destination information; and
• Determining whether products may lawfully be installed and used at the destination.

Dryfoam may decline or suspend a transaction that it reasonably believes could violate applicable law.

20. Governing Law and Dispute Resolution

These Sales Terms are governed by Washington law, without regard to conflict-of-law principles.

The United Nations Convention on Contracts for the International Sale of Goods does not apply.

The parties will first attempt in good faith to resolve a dispute through direct discussions between representatives authorized to settle it.

An unresolved dispute will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules.

The arbitration will:

• Use one arbitrator;
• Take place in Seattle, Washington, unless otherwise agreed;
• Permit a remote proceeding if appropriate;
• Be conducted in English; and
• Permit judgment on the award to be entered in a court having jurisdiction.

Either party may seek temporary or injunctive relief from a court when reasonably necessary to protect intellectual property, confidential information, evidence, or the effectiveness of arbitration.

Either party may bring an eligible claim in small-claims court.

21. Entire Agreement and Reliance

The controlling transaction documents constitute the entire agreement regarding the sale and supersede prior discussions and representations concerning that transaction.

Customer acknowledges that it has not relied on a promise or representation that is not contained in the controlling documents.

This section does not exclude fraud, intentional misrepresentation, an incorporated specification, or an express written warranty.

22. Assignment

Customer may not assign an accepted order without Dryfoam’s written consent.

Dryfoam may assign its rights and obligations in connection with financing, reorganization, merger, sale of assets, or transfer of the applicable business line.

23. Severability and Waiver

Failure to enforce a provision does not waive it.

If a provision is unenforceable, it will be modified to the minimum extent necessary, and the remaining provisions will continue in effect.

24. Electronic Communications

Electronic quotations, signatures, orders, acknowledgments, invoices, and notices have the same effect as comparable paper documents to the extent permitted by law.

25. Contact

Dryfoam Corporation

Email: contact@dry-foam.com