This Dealer Agreement (the “Agreement”) is made as of the execution date set forth on the Signature Page (the “Agreement Date”), subject to final approval by Airtek’s Headquarter, by and between 9525-8661 Québec Inc., carrying on business as Airtek Québec or L'Airtek, including its affiliates, subsidiaries and assigns (collectively, "Airtek"), and the Dealer, together with its Principal, as identified on the Signature Page (collectively, the “Dealer”).
By executing this Agreement, the Dealer and its Principal confirm that they have read and understood its terms. They agree to be bound by all provisions herein, as well as those published on Airtek's website (www.Airtekshop.com), including any operational policies or directives reasonably issued by Airtek in the course of its business, from time to time.
Airtek is a supplier of heating, ventilation, air conditioning (HVAC) and related products (the "Products") to business-to- business (B2B) customers, including dealers, retailers, installers and contractors.
The Dealer is a duly incorporated company, operating a commercial establishment in Québec, with adequate storage facilities and a qualified team offering end-users a quality sales and after-sales support service.
Airtek and the Dealer wish to enter into this Agreement in order to establish the terms and conditions under which :
Airtek grants the Dealer a non-exclusive right to purchase, sell, install and service the Products from end users; and
At the request of the Dealer, Airtek evaluates, approves, and grants credit terms to Dealer for the purchase of the Products.
IN CONSIDERATION of the mutual benefits and obligations arising hereunder, as well as any implementing rules or guidelines issued by Airtek from time to time, Airtek, the Dealer, and the Dealer Principal (each, a "Party" and collectively, the "Parties") agree as follows:
The Dealer undertakes to:
comply with all terms and conditions applicable to the promotion, sale, installation and maintenance of the Products;
maintain an adequate storage facility for the Products prior to installation;
operate a duly registered, legitimate, end-user HVAC business;
employ qualified personnel for sales, service, warranties and service to end-users; and
Use certified technicians with the tools and equipment to install, maintain and repair.
The Dealer undertakes to sell and install the Products exclusively to end-users, and to prohibit any resale to third parties, retailers or through auctions.
The Dealer must ensure that the Products are fit for the purpose for which they are acquired. Airtek makes no warranties, express or implied, as to the quality or fitness of the Products for any particular purpose.
The Dealer assumes all risk and liability in connection with the use of the Products, whether used alone or in combination with other products or services, whether provided by Airtek or not.
Airtek may modify, supplement or replace the terms of this Agreement by providing written notice to the Dealer. Such amendments will apply to all orders placed after receipt of notice, subject to reasonable notice, in accordance with the Civil Code of Québec (C.c.Q.), and provided that such amendments do not contravene the public order provisions of the C.C.Q.
Dealer is responsible for all costs associated with ordering or selling the Products, including, without limitation, shipping, handling, insurance, taxes and other applicable fees.
The Dealer must inspect the Products and verify the invoice upon receipt. In the absence of written notification sent to Airtek within 2 business days of receipt, the order will be deemed complete and the Products free of any defect or damage, unless there is a latent defect within the meaning of the Civil Code of Québec.
In the event of any damage, defect or discrepancy in the order, the Dealer must notify Airtek without delay, providing a detailed description with evidence (order number, documentation, photos, etc.). The Dealer shall cooperate with any investigation conducted by Airtek. Airtek will have 5 calendar days to resolve the issue at its discretion.
Dealer shall not reverse engineer, modify, use or integrate the Products with any other equipment. Such actions will result in the immediate voiding of any warranty.
Dealer shall maintain a record of all Products purchased and installed, including model number, serial number, date of installation, and end-user information. This information must be provided to Airtek upon request, including in the event of a recall, repair, or safety advisory.
Dealer is responsible for obtaining all required permits and licences, as well as complying with all applicable laws regarding the handling, maintenance, and disposal of the Products, except to the extent that this results in a financial loss to Airtek. Dealer indemnifies Airtek against any claims, fines or penalties arising from any failure thereto.
Dealer agrees to perform all of its obligations in full and on time, including payment of any amounts, advances or credit facilities provided by Airtek (the "Covenant"). This Commitment is the contractual responsibility of Dealer, subject to a limit set by Airtek and subject to review at its discretion.
The Dealer irrevocably waives any right, under the Civil Code of Québec, in particular to articles 2333 et seq., to require Airtek to bring an action against another party, to offer a prior demand or to refrain from exercising any remedy provided for in this contract.
The Dealer principal, by entering into this Agreement in his personal capacity, acknowledges and agrees to be jointly and
severally liable with the Dealer for the full performance of all present and future obligations arising under this Agreement, including any amendments or extensions.
All rights, powers and remedies available to Airtek under this Agreement are cumulative and in addition to any rights provided for by law, including the Civil Code of Québec.
Airtek may directly sue Dealer for performance of any obligation, without first having to exercise any remedy against any third party, bond, or security interest, to the extent permitted by law.
The Dealer acknowledges that its obligations shall survive payment in full of all amounts owed to Airtek, including loss or damage, even in the event of default or acceleration of payments.
No action under this Agreement may be brought until a formal demand for payment has been transmitted. This request is deemed to have been made as soon as it is sent to the last known address of the Dealer, by registered mail or by email with proof of postage.
Dealer shall not engage in any advertising or promotional activities that may, at Airtek's sole discretion, damage the reputation or integrity of the Airtek brand. Any non-conforming material must be corrected or removed upon written request from Airtek. Failure to comply will result in the immediate termination of this Agreement.
Ownership of the Products shall remain with Airtek until full payment of the amounts due. Until such time, Dealer shall hold the Products in trust for Airtek and shall not sell, transfer or encumber them without the written permission of Airtek. Airtek reserves the right to inspect the Products and related records with reasonable notice. Dealer acknowledges that Airtek may, at its option, publish a notice of retention of title or any other right in the Register of Personal and Movable Real Rights (RDPRM).
Airtek may, at its sole discretion and without notice or court authorization, deal with any security, hypothec, or guarantee as it
sees fit, without limiting the Dealer’s obligations in any way.
Airtek may grant time or indulgences to Dealer or third parties, without reducing or limiting Dealer's liability under this Agreement. These tolerances can in no way be interpreted as a waiver of its rights, even in the event of repetition.
Dealer agrees to make any payment to Airtek in cash, cheque or wire transfer in accordance with the payment terms agreed upon and approved in writing by the Parties.
In the case of cash on delivery, Dealer agrees to pay the full amount at the time of delivery, by certified cheque, bank draft, or other form of guaranteed payment accepted by Airtek. Failure to pay at the time of delivery may result in Airtek withholding delivery without notice or liability.
Dealer assumes full responsibility for any risk of loss, theft or damage to the Products upon taking possession, even if title has not yet been transferred. Title to the property remains with Airtek until paid in full in cleared funds. Airtek may publish a retention of title in the RDPRM at its own expense, enforceable against third parties.
A flat administrative fee of $100.00 will be charged to the Dealer for any payment returned or declined by Airtek’s financial institution, regardless of the reason. Airtek further reserves the right to require guaranteed forms of payment for any future transactions.
Any outstanding balance will bear interest at the rate of 1.5% per month (18% per annum), calculated and billed daily, within the limits permitted by the Criminal Code of Canada. No payment is deemed to have been made until the funds have been definitively cleared to Airtek's financial institution.
Airtek may assign any outstanding balance to a third party, including collection agency, credit management organization or law firm, without notice. The Dealer will be responsible for all costs arising from any failure to pay, including collection costs, administrative costs, interest, extrajudicial and judicial legal fees, and the costs of publishing or deleting entries.
Any credit application, account application, purchase order, or acceptance of delivery on credit shall be deemed to constitute full acceptance by Dealer of the terms and conditions of this Agreement, including the credit terms, policies and procedures published by Airtek on its website (www.Airtekshop.com), subject to reasonable notice of any updates, in accordance with the requirements of the C.c.Q.
When credit is granted, exclusively for the purchase of Airtek Products, Dealer agrees to provide Airtek, upon request or on a monthly basis, with an up-to-date sales and inventory report. This report must include the make, model, serial number, quantity, value of the Products sold, as well as the stock balance.
Airtek reserves the right, at its sole discretion, to refuse any Dealer order or credit application at any time without giving reasons.
Dealer acknowledges that ownership of the Products shall remain the property of Airtek until: (a) all amounts due for the Products have been paid in full; (b) the Dealer has fulfilled all other contractual obligations; and (c) the Products are separate and identifiable.
Dealer agrees to hold separately, as a trustee, any monies received from the sale of Airtek Products. These funds must not be commingled with other funds and are deemed to be held for the benefit of Airtek. They shall be paid to Airtek without delay in accordance with this Agreement.
Dealer may not sell, assign, encumber, pledge or otherwise dispose of the encumbered property without the prior written consent of Airtek, except in the ordinary course of its business. If a Product is incorporated with other goods prior to full payment, Airtek's security interest extends to the resulting goods and the proceeds of their sale .
Upon Airtek's written request, Dealer shall immediately return all unpaid Products in its possession, without prejudice to Airtek's remedies.
The Dealer agrees to: (a) maintain the hypothecated property in good condition; (b) not remove the hypothecated property from its
premises without Airtek’s consent; and (c) maintain insurance coverage naming Airtek as the loss payee.
In the event of default, all obligations of the Dealer shall become immediately payable. Dealer grants to Airtek, without delivery of possession, a chattel hypothec on all of its personal property, present and future, to secure payment of all of its present and future obligations to Airtek, including, without limitation: unpaid proceeds, unpaid invoices, and reasonable interest, fees and costs of collection. This hypothec will bear interest at a rate of 1.5% per month, calculated and billed daily, in accordance with the Criminal Code of Canada.
In the event of default, and in accordance with article 2757 C.c.Q., Airtek may, after giving at least 20 days' written notice, specifying the nature of the default, the amount claimed and the remedy envisaged, exercise any right permitted by law without prior judicial authorization, including: (a) taking possession of the encumbered property, (b) selling the property by private or public sale, (c) appoint an administrator to manage the property ; and (d) bring any legal proceedings.
The Dealer acknowledges and agrees to appoint Airtek, or any person designated by Airtek, as agent for the sole and limited purposes of the execution, registration and execution of the deeds, documents or instruments necessary for the preparation or registration of the movable hypothec and any related security in the Register of Personal and Movable Real Rights (RDPRM), and undertakes to sign all the documents required for this registration. Airtek may, without further consent, proceed with the registration and any changes thereto.
To secure all current and future obligations of the Dealer to Airtek, or if Airtek determines that the value of the hypothecated property has decreased or that there is an increased credit risk, Airtek may, at any time and at its sole discretion, request additional security and suspend the supply of products until such security is provided. The Dealer agrees to provide any additional security reasonably requested by Airtek.
Any payments made by the Dealer to other creditors shall be presumed not to have originated from funds owed to Airtek.
It is expressly agreed that any depreciation in the security held by Airtek for the Dealer’s obligations shall not release the Dealer, in whole or in part, from its obligations. Airtek is not required to exercise diligence in enforcing its rights against the Dealer.
Airtek may amend, extend, or release any hypothec securing the Dealer’s obligations or settle any claim related to the obligations of the Dealer or Airtek.
The Dealer agrees to obtain all waivers, subordination agreements, or acknowledgments necessary from third parties, including landlords or other secured creditors, as may be required to ensure that Airtek’s hypothec has priority over any competing right or claim, in accordance with the Civil Code of Québec.
The term of this Agreement (the "Term") begins on the date of this Agreement and continues for a period of 12 months, and automatically renews every 12 months, unless terminated earlier in accordance with this Agreement.
Either Party may terminate this Agreement by giving the other Party at least 30 calendar days' prior written notice, except for immediate termination permitted by the other provisions of the Agreement.
In the event of a breach of an essential obligation of this contract, the non-defaulting Party may terminate it after giving the defaulting Party reasonable written notice allowing it, if possible, to remedy the breach, in accordance with the requirements of the C.c.Q .
Notwithstanding the foregoing, Airtek may immediately and unilaterally terminate this Agreement, upon notice in accordance with the C.c.Q., in the following circumstances: (a) the Dealer materially breaches any provision of this Agreement, in which case the Dealer will be given a period of 5 calendar days to correct the breach, unless the breach is irreparable; (b) the Dealer repeatedly fails to comply with its obligations, despite prior notices; (c) the Dealer fails to pay any amounts due when due; (d) Airtek reasonably believes that the Dealer's credit is unsatisfactory or at risk; (e) Airtek has reasonable grounds to believe that the Dealer is or will be unable to meet its contractual commitments.
Airtek may terminate this Agreement immediately, without notice, if the Dealer: (a) ceases to carry on business in the ordinary course of business; (b) becomes insolvent or unable to pay its debts when due; (c) make a general assignment for the benefit of creditors; (d) becomes subject to the appointment of a receiver, trustee or similar officer for its business or assets; (e) is dissolved, liquidated or otherwise terminated under the C.C.Q. or any other applicable law; or (f) is the subject of a proceeding under the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act or any similar statute relating to insolvency or creditor protection in Québec. Upon such termination, all rights granted to Dealer under this Agreement will immediately cease. This provision does not limit Airtek's right to seek damages or any other remedies available at law or in equity.
In the event that this Agreement is terminated for any reason, all rights granted or inferred by Airtek to Dealer shall terminate and the following shall apply: (a) Dealer shall immediately cease using all information, licenses, and materials provided by Airtek and return all originals and copies; (b) within 10 calendar days, the Dealer must remove all signage, promotional materials, trademarks and related documents from the premises and vehicles. If not removed, Airtek may repossess the signs at the Dealer's expense; (c) the Dealer shall pay all outstanding balances in accordance with the payment terms and schedule established by Airtek; and (d) such termination shall not limit or relieve the Dealer of any obligation already incurred at the time of termination or any other liability with respect to such obligation.
If Dealer terminates this Agreement without cause, Dealer will indemnify Airtek for direct damages incurred as a result of termination, including, without limitation, the cost of unsold products specifically purchased for Dealer, loss of anticipated profits on confirmed orders, and unrecovered investments in marketing or promotional efforts directly attributable to Dealer, to the extent that such damages are proven in accordance with the C.c.Q.
All Products are covered by a warranty, whether or not they are registered. However, to benefit from the maximum warranty coverage,
the Dealer must complete the Product registration through Airtek’s process within 60 days following a compliant installation.
The warranty period begins on the initial installation date of the Product by the Dealer or an authorized agent. In the absence of satisfactory proof of this date, the warranty period shall be deemed to have commenced on the Product’s manufacturing date. This warranty does not cover damages resulting from normal wear and tear, misuse, improper maintenance, unauthorized modifications, or external factors not attributable to material or manufacturing defects. Detailed exclusions and additional warranty information are available on Airtek’s website (www.Airtekshop.com) in the Warranty section. The determination of warranty coverage, including the validity of any claim, shall be at the sole discretion of Airtek or the manufacturer, in accordance with applicable laws, including the Consumer Protection Act (Québec) and the Civil Code of Québec (C.c.Q.).
Airtek may extend the manufacturer’s applicable warranties to the Products and reserves the right to coordinate any warranty claim at its sole discretion. Unless otherwise stated, these warranties cover only defects in materials and workmanship under normal use conditions. In the case of a defective Product covered by warranty, Airtek or the manufacturer may, at its discretion, offer a replacement, repair, or credit toward the purchase of a new Product, depending on the Product’s age, parts availability, and market conditions. Any replacement Product will be covered for the remainder of the original warranty period. Accessories, ancillary parts, as well as installation or removal costs, are not covered.
Upon Airtek's request, the Dealer will return the replaced defective parts to the original designated pickup point. The Dealer is responsible for all transportation costs (round trip) associated with the management of the parts covered by the warranty.
To the fullest extent permitted by the Consumer Protection Act (Québec) and the C.c.Q., Airtek disclaims all implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, as applicable to the dealer. Airtek reserves the right to assign or subcontract any services related to the products under this warranty. Airtek has the sole discretion to make final decisions on warranty claims, including their validity, scope and resolution, in accordance with the Consumer Protection Act (Québec) and the C.c.Q. In no event shall Airtek's liability exceed the limits established by applicable law.
Each Party recognizes that it is acting in an independent capacity. Neither Party shall be permitted to enter into any contract, assume any obligation, or create any liability in the name or on behalf of the other Party, either express or implied.
Dealer agrees to indemnify, defend, and hold harmless Airtek, its subsidiaries, affiliates, officers, directors, employees, and agents (collectively, the " Indemnified Parties ") from and against any and all claims, losses, damages, liabilities, costs, or expenses (including reasonable legal fees) arising out of: (a) any defects in product, design, or workmanship; (b) any actual or alleged infringement of intellectual property rights in the Products; (c) any gross negligence, willful misconduct, or breach by Dealer of this Agreement; or (d) any third-party claim for personal injury, property damage, or financial loss caused by the Products.
Subject to mandatory legal provisions, Airtek's total liability to the Dealer, except for cases of gross negligence, willful misconduct or fraud, is expressly limited to the lesser of: (a) the total amounts paid by the Dealer to Airtek in the 2 months preceding the event giving rise to the claim; (b) actual and proven damage suffered by the dealer. This limitation does not apply to: (i) claims for death or personal injury caused by Airtek; (ii) any fraud, wilful misconduct or breach of public order; or (iii) any liability that cannot be limited under applicable law.
Except in cases of gross negligence, willful misconduct or fraud, in no event shall Airtek be liable for any indirect, consequential, incidental, exemplary, special or punitive damages, including, but not limited to, loss of profits, business opportunities or damage to reputation.
The limitations and exclusions of liability set forth in this Agreement shall survive the termination or expiration of this Agreement, except where such limitations are prohibited by applicable law.
Neither party shall be liable for any delay or failure to perform due to causes beyond its control, including, but not limited to, acts of God, government regulations, pandemics, strikes, or other unforeseen events. The affected party must promptly notify the other party and must make reasonable efforts to mitigate the impact of such events.
Dealer acknowledges that Airtek's information is proprietary and confidential in nature ("Confidential Information "), and that any unauthorized disclosure to a third party would not be adequately compensated by damages, but would cause irreparable harm to Airtek. Dealer agrees that Airtek shall have the right to seek injunctive relief from a court of competent jurisdiction to prevent further misappropriation of confidential information and to seek any other relief deemed appropriate by Airtek. Accordingly, Dealer agrees that Airtek shall be entitled, in addition to all other rights and remedies available at law or in equity, to an injunction prohibiting Dealer and its agents from engaging directly or indirectly in any actions prohibited by this Agreement with respect to Confidential Information.
To the fullest extent permitted by Québec law, including the Consumer Protection Act (Québec) and the Civil Code of Québec, any warranties, conditions or obligations implied by statute or statute that cannot be excluded or modified apply only to the minimum extent required by law. Any such warranty, condition or obligation shall be excluded or limited to the fullest extent permissible, and Airtek's liability shall not exceed what is strictly necessary under applicable law.
Dealer acknowledges that the remedies provided in this Agreement shall be its sole and exclusive remedies for any claim related to the performance, non-performance or termination thereof.
This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Québec, as well as the federal laws of Canada applicable therein. The parties irrevocably acknowledge and agree to the exclusive jurisdiction of the courts of the Province of Québec, district of Laval, for any legal remedy in connection with this Agreement, subject to the provisions below relating to alternative dispute resolution. In the event of any dispute, controversy or claim arising out of or relating to this
Agreement – including its existence, interpretation, validity, non-performance or termination – the Parties agree to first attempt to resolve the dispute in good faith, by negotiation or by alternative dispute resolution (ADR), such as mediation, held in Lav al, Québec, or the surrounding area. If the dispute cannot be resolved within a reasonable time following these steps, the parties agree to submit it to mediation in accordance with the mediation rules applicable in Québec law. If mediation is not resolved within a reasonable time, or if mediation is not available, then the dispute will be submitted to binding arbitration before a sole arbitrator, appointed in accordance with the applicable laws of the Province of Québec, including the relevant provisions of the Civil Code of Québec and the Code of Civil Procedure (Québec). The arbitration procedure will be held in Québec, and the arbitrator will have all the necessary powers to decide the dispute. The decision rendered will be final and binding on the parties. Any judgment on this award may be entered in a court of competent jurisdiction in the Province of Québec.
Any notice, request, consent, demand, or other communications given or required to be given which provides a reliable proof of delivery in respect of the placement is validly given to such receiving Party upon the date of delivery to the address, email address, phone number or facsimile number of the receiving party as it appears in this section, or to the last-known address, electronic mail address, phone number or facsimile number or such other street address, electronic mail address, phone number or facsimile number as the parties may from time to time direct in writing: (a) if sent by email, at the time shown on the proof of delivery; (b) if sent by fax, at the time shown on the confirmation of transmission; or (c) in the case of courier or personal delivery, when delivered; provided that in each case where delivery occurs after 5 PM, service will be deemed to occur at 9 AM on the following business day. The communication information of the Parties is set forth below:
9525-8661 Québec inc. c/a Airtek Québec, and L'Airtek | Telephone: | 1 (888) 820-9680 |
1108 Berlier Street | Email address : | Info@AirtekQuébec.com |
Laval, Québec H7L 3R9 | Contact: | Legal Department |
Time is of the essence. This Agreement supersedes any prior agreements between the Parties. Airtek may amend the terms of this Agreement or the Program from time to time. For material changes, Airtek will provide written notice to the Dealer. For all other changes, notice may be given by posting the updated terms on Airtek’s website, which shall be deemed sufficient notice to the Dealer. Amendments apply prospectively and will not affect accrued rights or obligations prior to the effective date of the change. Failure to enforce any terms does not waive any Party’s rights. This Agreement applies to the successors, assigns, and legal representatives of the Parties; and binds and benefits the Parties, their successors and assigns. The Dealer may not assign or transfer this Agreement without the prior written consent of Airtek, and Airtek may assign or transfer this Agreement with notice to the Dealer. The Dealer shall not engage in activities that may harm Airtek’s business or reputation during the Agreement's Term. If any provision of this Agreement is found invalid or unenforceable, the remaining provisions shall remain in full force as if the invalid part had never been included. The Parties confirm nothing prevents them from fulfilling their obligations, and signatories confirm they are authorized to bind their respective organizations. The Agreement may be signed electronically or in multiple copies, all of which form a single agreement having the same legal effect as a handwritten signature. Each Party has obtained or waived legal advice and enters the Agreement willingly, without coercion. Each Party must notify the other Party in writing of any changes to their contact information within 5 calendar days of such changes taking effect. Headings are for convenience; and gender and number references are interchangeable.