Product and Installation Terms – InSpire Transpiration Solutions, ULC

InSpire Transpiration Solutions, ULC


(InSpire – Customer)


These Terms and Conditions of Purchase (these “Terms”) govern the sale of all equipment and services rendered by InSpire Transpiration Solutions ULC, a Canadian unlimited liability company (“Supplier”) to its customer (“Customer”).  These Terms may only be waived or modified as provided herein.


  1. Acceptance. These Terms are an integral part and form the basis of any agreement resulting from Supplier’s written proposal to Customer (“Proposal”) for the sale of the described equipment (“Equipment”) and any related installation, professional or ancillary services (“Services”). A Proposal may also include an offer to purchase a license or subscription to use certain software or software as a service products, and any such license or subscription will be subject to Customer’s acceptance of the then-current standard end user license agreement or terms of service for such software or software as a service products, as made available by Supplier.  A Proposal is subject to acceptance within thirty (30) days from its date and prices are quoted in USD.  If Customer accepts a Proposal by placing an order (“Order”) without the addition of any other terms and conditions of sale or any other modification, Customer’s Order shall be treated as acceptance of these Terms. If Customer’s acceptance of a Proposal is expressly conditioned upon Supplier’s acceptance or assent to terms other than those expressed herein, return of such Proposal by Supplier with these Terms attached serves as notice of objection to Customer’s terms and a counter-offer to provide the Equipment or Services in accordance with scope and terms of the original Proposal. If Customer does not reject or object within ten (10) days, Supplier’s counter-offer will be deemed accepted. Customer’s acceptance of Equipment or Services from Supplier will in any event constitute an acceptance by Customer of these Terms.


  1. Orders, Delivery; Title; Risk of Loss. All Equipment shipments by Supplier are FOB Supplier’s warehouse and/or point of origin, freight prepaid by Customer as part of Customer’s Order. Delivery of the Equipment to the carrier at the point of origin shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer. Selection of the carrier and the delivery route shall be made by Supplier unless specified in advance by Customer. Supplier shall use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates. Customer acknowledges that delivery dates provided by Supplier are estimates only and that Supplier is not liable for failure to deliver on such dates. Supplier reserves the right to make deliveries in installments. Delivery of a quantity less than the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Equipment delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.


  1. Acceptance of Equipment, Returns and Cancellation.


    • An Order placed with and accepted by Supplier cannot be delayed, canceled, suspended, or extended except with Supplier’s written consent and upon written terms accepted by Supplier that will reimburse Supplier for and indemnify Supplier against loss and provide Supplier with a reasonable profit for its materials, time, labor, services, use of facilities and otherwise. Customer will be obligated to accept any Equipment shipped, tendered for delivery or delivered by Supplier pursuant to the Order prior to any agreed delay, cancellation, suspension or extension of the Order. Any attempt by Customer to unilaterally revoke, delay or suspend acceptance for any reason whatever after it has agreed to delivery of or accepted any shipment shall constitute a breach of these Terms. Inspection and acceptance of the Equipment shall be Customer’s responsibility.


    • The Customer must inspect the Equipment upon delivery and report any apparent error or defect to Supplier within seven (7) days of said delivery. Should the Customer fail to do so, it shall be conclusively presumed that the Equipment was delivered in accordance with the Order, and the Customer waives any right to revoke acceptance thereafter. Damage to, or loss of, any goods in transit must be noted on the carrier’s delivery freight bill. All Equipment damaged during shipment and all claims relating thereto must be made with the freight carrier in accordance with such carrier’s policies and procedures. Claims for Equipment damaged during shipment are not covered under the warranty provision stated herein. Supplier will provide the Customer with reasonable assistance in order for the Customer to file a claim with the carrier. Customer must reorder any replacements needed and such reorder shall be subject to these Terms.


    • No return of Equipment shall be accepted by Supplier without Supplier’s written approval and the issuance of a return authorization by Supplier which sets forth the terms and conditions applicable to the return, including shipping responsibility, restocking charges (if applicable) and carrier. Orders accepted by Supplier for customized, modified or specifically produced Equipment are non-cancelable and such Equipment are non-returnable. Equipment not eligible for return shall be returned to the Customer, freight collect.


    • In the event of cancellation of these Terms by Customer: (i) any Orders accepted by Supplier and paid by Customer at time of receipt of written cancellation notice will be shipped; (ii) any order accepted by Supplier and unpaid by Customer will be cancelled; provided, however, that Supplier will be reimbursed for all actual expenditures, commitments, liabilities, and costs, determined in accordance with good accounting practice, made or incurred in respect to such incomplete Orders, plus a reasonable profit on such costs; and (iii) Services will be stopped as promptly as reasonably possible; provided, however, that Supplier will be reimbursed for all actual expenditures, commitments, liabilities, and costs, determined in accordance with good accounting practice, made or incurred in respect to such incomplete Services, plus a reasonable profit on such costs.


  1. Pricing and Taxes; Terms of Payment.


    • Equipment. Equipment prices shall be as specified by Supplier and shall be applicable for the period specified in the applicable Proposal. If no period is specified, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in Supplier’s costs or other circumstances beyond Supplier’s reasonable control. Prices are exclusive of federal, provincial, state, local or any other taxes, charges, levies and duties, shipping charges, forwarding agent’s and broker’s fees, consular fees and document fees. If Supplier shall be liable for or shall pay any of the foregoing, Supplier shall charge such amount to Customer in addition to the price of the Equipment.  Charges for special packaging, crating or packing are the responsibility of Customer. Payment for Equipment shall be due in full before shipment of such Equipment to Customer unless otherwise specified by Supplier in writing. Customer agrees to pay the entire net amount of each invoice from Supplier pursuant to the terms of each such invoice without offset or deduction.  The date of collection/receipt of a check by the Supplier shall be deemed the date of payment by the Customer.


    • Services. Prices for Services shall include, if required by law, all sales, consumer, use and similar taxes legally enacted as of the date hereof only for Services rendered by Supplier.  Prior to commencing the Services, Customer shall pay Supplier a down payment of the lesser of ten percent (10%) of the contract price specifically related to the Services (“Contract Price”) and One Thousand Dollars ($1,000).  The balance of the Contract Price shall be paid according to the progress payment schedule set forth in the accepted Proposal.  If payment is not received as required, Supplier may suspend performance and the time for completion shall be extended for a reasonable period of time not less than the period of suspension. Customer shall be liable to Supplier for all reasonable shutdown, standby and start-up costs as a result of the suspension. Supplier reserves the right to add to any account outstanding for more than thirty (30) days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principal amount due at the end of each month (equivalent to 18% per annum, simple interest) Customer shall pay all costs (including attorneys’ fees) incurred by Supplier in attempting to collect amounts due and otherwise enforcing these Terms.


  1. Performance


    • Equipment. Supplier shall be obligated to furnish only the Equipment in the accepted Proposal. Supplier may rely on the acceptance of the Proposal as acceptance of the suitability of the Equipment for the particular project or location. Compliance with any local building codes or other laws or regulations relating to specifications or the location, use or operation of the Equipment is the sole responsibility of Customer.  If Equipment is tendered that does not fully comply with the provisions of these Terms, and the Equipment is rejected by Customer, Supplier will have the right to cure within a reasonable time after notice thereof by substituting a conforming tender whether or not the time for performance has passed.


    • Services. With regard to Services, Supplier’s obligation to Customer is limited to the Services as defined in the Proposal and does not include any modifications to the site where Services are to be performed (collectively, the “Site”) under any applicable laws or building code(s). In no event shall Supplier be required to perform work Supplier reasonably believes is outside of the defined Services without a written change order signed by Customer and Supplier.


    • Subcontracting. Supplier may subcontract any part of the Services to one or more subcontractors selected by Supplier. Any such subcontracting will not affect Supplier’s obligations to Customer for Services provided under these Terms.  Supplier shall remain solely responsible and liable at all times for the actions of its subcontractors as though they were the actions of Supplier itself.


  1. Time for Completion of Services; Access; Permits and Fees; Certain Conditions. Supplier shall supervise and direct the Services and have exclusive control over construction means, methods, techniques, sequences and procedures subject to the following:


    • Except to the extent otherwise expressly agreed in writing signed by an authorized representative of Supplier, all dates provided by Supplier or its representatives for commencement, progress or completion are estimates only. Customer acknowledges that Supplier is not liable for failure to complete Services on such dates.


    • Supplier and its subcontractors shall be provided access to the Site during regular business hours, or such other hours as may be requested by Supplier and acceptable to the Customer for the performance of the Services, including sufficient areas for staging, mobilization, and storage. Supplier access to correct any emergency condition shall not be restricted.


    • Supplier shall secure (with Customer’s assistance) and pay for building and other permits and governmental fees, licenses, and inspections necessary for proper performance and completion of the Services, which are legally required when bids from Supplier subcontractors are received, negotiations thereon concluded, or the effective date of a relevant written change order signed by the parties, whichever is later. Customer is responsible for necessary approvals, easements, assessments and charges for construction, use or occupancy of permanent structures or for permanent changes to existing facilities.


    • Customer shall provide without charge to Supplier all water, heat, and utilities required for performance of the Services.


    • In the performance of the Services, if Supplier encounters conditions at the Site that are (i) subsurface or otherwise concealed physical conditions that differ materially from those indicated on drawings expressly incorporated herein or (ii) unknown physical conditions of an unusual nature that differ materially from those conditions ordinarily found to exist and generally recognized as inherent in construction activities of the type and character as the Services, Supplier shall notify Customer of such conditions promptly, prior to significantly disturbing same. If such conditions differ materially and cause an increase in Supplier cost of, or time required for, performance of any part of the Services, Supplier shall be entitled to, and Customer shall consent by change order to, an equitable adjustment in the price of the Services, contract time, or both. Supplier is not liable for any claims, damages, losses, or expenses, arising from or related to conditions that existed in, on, or upon the premises before the commencement date of these Terms (“Pre-Existing Conditions”), including, without limitation, damages, losses, or expenses involving Pre-Existing Conditions of building envelope issues, mechanical issues, plumbing issues, and/or indoor air quality issues involving mold, pests, and/or fungi. Supplier also is not liable for any claims, damages, losses, or expenses, arising from or related to work done by or services provided by individuals or entities that are not employed by or hired by Supplier.


    • The Services and other services in connection with these Terms expressly exclude any identification, abatement, cleanup, control, disposal, removal or other work connected with asbestos, polychlorinated biphenyl (“PCB”), or other hazardous materials (hereinafter, collectively, “Hazardous Materials”). Customer warrants and represents that, except as set forth in a writing signed by Supplier, there are no Hazardous Materials on the Site that will in any way affect the Services and Customer has disclosed to Supplier the existence and location of any Hazardous Materials in all areas within which Supplier will be performing the Services. Should Supplier become aware of or suspect the presence of Hazardous Materials, Supplier may immediately stop work on the Services in the affected area and shall notify Customer. Customer will be responsible for taking any and all action necessary to correct the condition in accordance with all applicable laws and regulations. Customer shall be exclusively responsible for any claims, including the payment thereof, arising out of or relating to any Hazardous Materials on or about the Site that are not brought onto the Site by Supplier. Supplier shall be required to resume performance of the Services in the affected area only in the absence of Hazardous Materials or when the affected area has been rendered harmless. In no event shall Supplier be obligated to transport or handle Hazardous Materials, provide any notices to any governmental agency, or examine the Site for the presence of Hazardous Materials. Supplier shall not be obligated to pay for the cost of lost refrigerant. Supplier equipment sold on a supply basis is warranted in accordance with Supplier standard warranty for supplied Equipment.


  1. Limited Warranty.


    • Equipment. Unless otherwise set forth in the applicable Proposal, Supplier warrants that, for a period of one (1) year from the date of substantial completion of the installation Services for such Equipment, the Equipment installed hereunder shall be free from defects in material, manufacture, and workmanship (the “Equipment Warranty”). Substantial completion shall be the earlier of the date that the installation Services are sufficiently complete so that Customer can utilize the Equipment for its intended use or the date that Customer receives beneficial use of the Equipment. Customer’s remedy for any breach of the Equipment Warranty is limited to refund of the purchase price for such nonconforming Equipment (or portion thereof) or repair or replacement of the nonconforming Equipment (or portion thereof), at Supplier’s option. No liability whatever shall attach to Supplier until the Equipment has been paid for. The Equipment Warranty is voidable in the event of nonpayment. SUPPLIER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING PREVENTION OF MOLD, FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINANTS. THE EQUIPMENT WARRANTY EXPRESSLY EXCLUDES ANY REMEDY FOR DAMAGE OR DEFECT CAUSED BY CORROSION, EROSION, OR DETERIORATION, ABUSE, MODIFICATIONS OR REPAIRS NOT PERFORMED BY SUPPLIER. ANY FURTHER WARRANTY MUST BE IN WRITING AND AGREED TO BY AN AUTHORIZED SIGNATORY OF THE SUPPLIER.


    • Services Warranty. Unless otherwise set forth in the applicable Proposal, Supplier warrants that it will perform the Services in a professional and workmanlike manner in accordance with industry standards (the “Services Warranty”). Customer’s remedy for any breach of the Services Warranty is limited to refund of the fees paid for such nonconforming Services (or portion thereof) or re-performance of such nonconforming Services (or portion thereof), at Supplier’s option. No liability whatever shall attach to Supplier until the Services have been paid for. The Services Warranty is voidable in the event of nonpayment. NO REPRESENTATION OR WARRANTY IS MADE REGARDING PREVENTION BY THE SCOPE OF SERVICES, OR ANY COMPONENT THEREOF, OF MOLD, PESTS, FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINATES. SUPPLIER SPECIFICALLY DISCLAIMS ANY LIABILITY IF THE SCOPE OF SERVICES OR ANY COMPONENT THEREOF IS USED TO PREVENT OR INHIBIT THE GROWTH OF SUCH MATERIALS.






  1. Use of Equipment by Customer. Customer assumes all risk and liability for loss or injury in connection with the use of the Equipment whether used singly or in combination with other substances or equipment in any process whatsoever. Any information provided by Supplier including without restriction technical information sheets and product brochures is based on tests believed to be reliable. However, as actual conditions of use may vary and are beyond the control of Supplier, the Equipment’s specified characteristics and any recommendations for use, however communicated, are offered solely for Customer’s evaluation and must be verified by Customer.


  1. Export Laws. The obligation of Supplier to supply Equipment under these Terms is subject to the ability of Supplier to supply such items consistent with applicable laws and regulations of Canada, the United States and other governments. Supplier reserves the right to refuse to enter into any Order, and to cancel any Order for Equipment, under these Terms if Supplier in its sole discretion determines that performance of the transaction to which such Equipment relates would violate any such applicable law or regulation. Customer will pay all handling and other similar costs from Supplier’s factories including the costs of freight, insurance, export clearances, import duties and taxes. Customer will be “exporter of record” with respect to any export from the United States of America and will perform all compliance and logistics functions in connection therewith and will also comply with all applicable laws, rules and regulations. Customer understands that Supplier and/or the Equipment are subject to laws and regulations of Canada and the United States which may require licensing or authorization for and/or prohibit export, re-export or diversion of the Equipment to certain countries, and agrees it will not knowingly assist or participate in any such diversion or other violation of applicable laws and regulations. Customer agrees to hold harmless and indemnify Supplier for any damages resulting to Customer or Supplier from a breach of this paragraph by Customer.


  1. Intellectual Property. Supplier retains all ownership, title and other rights to all patents, trademarks, copyrights, trade secrets and other intellectual property rights related to the Equipment, and, except for the right to use the Equipment sold, Customer obtains no rights to use any such intellectual property. Supplier agrees to defend any suit or proceeding brought against Customer so far as such suit or proceeding is solely based upon a third party claim that the use of the Equipment as provided by Supplier constitutes infringement of any patent of Canada or the United States, provided Supplier is promptly notified in writing and given authority, information and assistance for defense of same. In the event of infringement, Supplier may, at its option, procure for Customer the right to continue to use said Equipment (or portion thereof), or modify it so that it becomes non-infringing, or replace same with non-infringing Equipment (or portion thereof), or to remove said Equipment (or portion thereof) and to refund the applicable purchase price. The foregoing will not be construed to include any agreement by Supplier to accept any liability whatsoever in respect to patents for inventions including more than the Equipment furnished hereunder, or in respect of patents for methods and processes to be carried out with the aid of said Equipment. The provision of Equipment by Supplier does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of said Equipment with other devices or elements. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH REGARD TO PATENT INFRINGEMENT. Notwithstanding the provisions of this paragraph, Customer will hold Supplier harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Customer’s designs or specifications or instructions.


  1. Insurance. Upon request, Supplier will furnish evidence of its standard insurance coverage. If Customer has requested to be named as an additional insured under Supplier insurance policy, Supplier will do so but only to the extent of Supplier’s indemnification obligations under section 15. Supplier does not waive any rights of subrogation.


  1. Confidentiality. All specifications (other than the Customer’s specifications), technical data, price lists, documents, materials and proprietary information relating to the Equipment are the confidential and proprietary information of Supplier and shall be treated in confidence by Customer and shall not be disclosed, reproduced or communicated to any third party in any way whatever except as is required in connection with the purchase and use of the Equipment by Customer, and on terms agreed with Supplier in writing. The foregoing provisions do not apply to information that was publicly available prior to the date of disclosure by Supplier or that becomes publicly available after such disclosure other than pursuant to a breach of any obligation of confidentiality to Supplier.


  1. Customer’s Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give Supplier the right, without an election of remedies, to terminate these Terms or suspend performance by delivery of written notice: (a) any failure by Customer to pay amounts when due; or (b) any general assignment by Customer for the benefit of its creditors, or if Customer becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors, or makes or proposes to make any proposal or arrangement with creditors, or if any steps are taken for the winding up or other termination of Customer or the liquidation of its assets, or if a trustee, receiver, or similar person is appointed over any of the assets or interests of Customer; (c) any representation or warranty furnished by Customer in connection with these Terms is false or misleading in any material respect when made; or (d) any failure by Customer to perform or comply with any provision of these Terms. In the event of cancellation for the reasons above, Customer shall be liable to the Supplier for all Equipment furnished and Services rendered and all damages sustained by Supplier (including lost profit and overhead) in connection therewith.


  1. Indemnification. In addition to any other indemnification obligations set forth herein, to the fullest extent permitted by law, Supplier and Customer shall indemnify, defend and hold harmless each other, and each other’s representatives, agents, subcontractors, employees, heirs, successors and assigns, from any and all third party claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the gross negligence or willful misconduct of their respective employees or other authorized agents in connection with their activities within the scope of these Terms. Neither party shall indemnify the other against claims, damages, expenses or liabilities to the extent attributable to the acts or omissions of the other party. If the parties are both at fault, the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any claims based on facts or conditions that occurred prior to expiration or termination.


  1. Force Majeure. Supplier shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including but not limited to, acts of God, revolution, natural disasters, acts or omission of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, riots, wars, acts of terrorism, delays in transportation or inability to obtain supplies or materials through its regular sources. Supplier’s time for performance of any such obligation shall be extended for the time period of such delay or Supplier may, at its option, cancel any Equipment or remaining part thereof, without liability, by providing written notice of such cancellation to Customer.


  1. Miscellaneous.


    • These Terms, together with each Order, constitute the entire agreement between both parties. These Terms may not be amended, modified or terminated except by a writing signed by the parties hereto. No documents shall be incorporated herein by reference except as expressly agreed to in writing by Supplier.


    • As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular.


    • No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, Supplier’s obligations under these Terms may be performed by divisions, subsidiaries or affiliates of Supplier.


    • The parties are independent contractors, and not agents, partners, joint venturers or employees of one another. Nothing in these Terms shall make or be construed to make the parties partners or agents of each other or to create any other relationship by which the acts of either party may bind the other or result in any liability to the other.


    • The following sections will survive the expiration or earlier termination of these Terms: sections 4, 7 through 11, 13, 15 and 17 and any other sections that by their nature are intended to survive such expiration or earlier termination.


    • These Terms shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. No provision of these Terms shall be deemed waived by a course of conduct unless such waiver is in writing signed by both parties and stating specifically that it was intended to modify these Terms.


    • Customer acknowledges that irreparable harm may result if it breaches its obligations under this section 11 or 13, that such breach would not be properly compensable by an award of damages and that, in addition to any other available remedies, Supplier will be entitled to seek injunctive relief to prevent a threatened or actual breach by Customer of section 11 or 13.


    • These Terms shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. without regard to conflicts of laws principles. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods or any other international convention, agreement or protocol governing sales of goods.


    • Subject to section 17(g), all disputes arising out of or in connection with these Terms, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada.  The number of arbitrators shall be one.


    • Any action or suit arising out of or related to these Terms must be commenced within one year after the cause of action has accrued.


    • If any term or condition of these Terms is invalid, illegal or incapable of being enforced by any rule of law, all other terms and conditions of these Terms will nevertheless remain in full force and effect as long as the economic or legal substance of the transaction contemplated hereby is not affected in a manner adverse to any party hereto.


    • These Terms have been prepared initially by Supplier. However, the parties acknowledge that this is a negotiated agreement and, in the event of any dispute over its meaning or application, these Terms shall be interpreted fairly and reasonably and neither more strongly for, nor more strongly against, either party.


    • Each Order may be executed in several counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same agreement. A facsimile copy hereof shall suffice as an original.


    • Unless otherwise indicated in the Order, all dollar amounts referred to in these Terms or such Order are in the currency of the United States.