ALVI Services Agreement
This Agreement was last updated on l,2022.
By agreeing to a CleanAir.ai order form (once agreed to by the Parties, the “Order Form”), the customer identified in the Order Form (“Customer”) hereby enters into this CleanAir-as-a Service Agreement with CleanAir.ai Corporation(“CleanAir”)with its principal place of business as set out in the Order Form.This CleanAir-as-a-Service Agreement incorporates the terms and conditions of the Order Formand depending on the products and services ordered or used by Customer,may incorporatesupplementary terms and conditions (each a “Supplementary Term”), together, the “Agreement”). The Agreementwillbe a binding agreement effective on theorder effective date set out in the Order Form(the “Effective Date”)and will apply to the CleanAir Services (defined below), provided by CleanAir to Customer.Capitalized terms not otherwise defined in this Agreement willhave the meanings ascribed to such terms in the Order Form.Each of CleanAir and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.BY USING THE CLEANAIR SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 9. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE CLEANAIR SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO CLEANAIR THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE CLEANAIR SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO CLEANAIR THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
1. CleanAir-as-a-Service and Onboarding Services
- Subject to Customer’s and Customer’s employees’ (each a “End User”) compliance with the terms and conditions of this Agreement, CleanAir will use commercially reasonable efforts to make the CleanAir Services available to Customer during the Term on the terms and conditions set out in this Agreement. “CleanAir-as-a-Service”consist of the sale of the CleanAir’s hardware or its third party supplied hardware, components and parts identified in the Order Form (“Hardware”), (ii) sensor software installed onthe applicable Hardware (“Product Firmware”), and (iii) remotely hosted filter monitoring services(collectively, with theCleanAir-as-a-Service, the “CleanAir Solution”).“CleanAir Services” means the CleanAir-as-a-Service and the Onboarding Services (defined below), collectively, and any part thereof.
- As part of the CleanAir-as-a-Service, Customer may permit End Users to access and use the CleanAir-as-a-Service to facilitate End Users access to the Hardware. Customer may also permit End Users to access and use the dashboard made available by CleanAir as part of the CleanAir-as-a-Service (the “Dashboard”).
- CleanAir may perform onboarding services to set up theCleanAir-as-a-Service (“Onboarding Services”) as set forth in the Order Form. The term “CleanAir-as-a-Service” does not include theOnboarding Services.
2. Restrictions and Responsibilities
- Except as provided in any Supplementary Term, Customer will be responsible for: (i) installing the Hardware at Customer’s premises or premises owned by a third party and that is managed by Customer; and (ii) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the CleanAir-as-a-Service, including, without limitation, firmware, network connection, modems, networking, electrical wire, conduit, transformers, disconnects, breakers, panels, hardware and the like (“Equipment”).
- Customer will be responsible for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.Customer is responsible for identifying and authenticating all End Users, for ensuring only End Users access and use theCleanAir-as-a-Service, and for End Users’ compliance with this Agreement.Customer will not allow any End User to share the log-in information with any other person. Customer will promptly notify CleanAir of any actual or suspected unauthorized use of the CleanAir-as-a-Service. CleanAir reserves the right to suspend, deactivate, or replace the End User’ account, any log-in credentials, or Hardware if it determines that the End User’s account, log-in credentials or Hardware may have been used for an unauthorized purpose.
- CleanAirwill not be held responsible for support failures caused by failures in telecommunications networks, misuse of the Hardwareor any other Product Firmware by End Users or other events outside CleanAir’s reasonable control.
- Customer will not itself, and will not permit others to, directly or indirectly: (i) useCleanAir-as-a-Service outside the scope set out in an Order Form; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the CleanAir-as-a-Serviceor any software, Documentation or data related to the CleanAir Services (“Software”); (iii) sub-license, sell, rent, lend, lease or distribute theCleanAir-as-a-Service or any Intellectual Property Rights (defined below) therein or otherwise make theCleanAir-as-a-Service available to others; (iv) use theCleanAir-as-a-Service to permit timesharing or service bureau use, or commercially exploit theCleanAir-as-a-Service; (v) use or access theCleanAir-as-a-Service in violation of any applicable law or Intellectual Property Right, in a manner that threatens the security or functionality of the CleanAir-as-a-Service, or for any purpose or in any manner not expressly permitted in this Agreement; (vi) use theCleanAir-as-a-Service to create, collect, transmit, store, use or process any,data, information, content, records, and files that: (1) Customer (or any of its End Users) loads, makes available to, transmits to or enters into theCleanAir-as-a-Service; or (2) that is collected, received, or transmitted by the Product Firmware into the CleanAir Services (“Customer Data”): (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (vii) modify theCleanAir-as-a-Service; (viii) remove or obscure any proprietary notices or labels on theCleanAir-as-a-Service, including brand, copyright, trademark and patent or patent pending notices; or (ix) perform any vulnerability, penetration or similar testing of theCleanAir-as-a-Service.
3. Confidentiality; Proprietary Rights
- Each Party (“Receiving Party”) understands that the other Party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”). ConfidentialInformation of CleanAir includes non-public information regarding the Order Form (including any Fees therein), features, functionality and performance of the CleanAir Services and, if applicable, all CleanAir Property (defined below). ConfidentialInformation of Customer includes Customer Data. The Receiving Party during the Term and at all timesthereafter shall: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use any such ConfidentialInformation except to carry out its obligations under this Agreement. ConfidentialInformation will not includeany information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any ConfidentialInformation of the Disclosing Party.
- Notwithstanding Section 3.1, Receiving Party may disclose Disclosing Party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies Disclosing Party in writing of such required disclosure and cooperates with Disclosing Party to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of CleanAir: (1) to potential assignees, acquirers or successors of CleanAir if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of CleanAir; and (2) to its affiliates, third party subcontractors, third-party sub-processors, consultants and any other subcontractors in connection with the provision of the CleanAir Services.
- CleanAir or its licensors will retain all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (collectively, “Intellectual Property Rights”) used to manufacture, used to create, embodied in, used in and otherwise relating to the Hardware, Product Firmware, Documentation,CleanAir’s Confidential Information, Aggregated Data (defined below), Software and CleanAir Services, any of their component parts and all improvements, enhancements or modifications thereto (collectively “CleanAir Property”).Customer will not acquire any ownership interest in any of CleanAir’s Intellectual Property Rights under the Agreement. All rights not expressly granted by CleanAir to Customer under this Agreement are reserved
Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to CleanAir any right, title or interest including any Intellectual Property Rightsin or to Customer Data. The Customer willbe responsible for maintaining, protecting, and making backups of Customer Data. To the extent permitted by applicable law,CleanAirwill not be liable for any failure to store, or for loss or corruption of Customer Data. The Customer hereby grants to CleanAir, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transmit, copy, modify and display Customer Data to:
- provide the CleanAirServices;
- improve and enhance the CleanAir Services and its other offerings; and
- produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). CleanAirmay use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind. Aggregated Data is not Customer Data and is not the Customer’s Confidential Information.
- Customer grants to CleanAir and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the CleanAir Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or End Users relating to the operation of CleanAir’s or its affiliates’ CleanAir Services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or End Users and without any obligation to the Customer or any End User. CleanAir is not obligated to use any Feedback.
4. Payment of Fees
- Customer will pay CleanAirthe fees for the Hardware, Product Firmware and CleanAir Services are as stated in the Order Form(the “Fees”). Customer shall pay the Fees in the currency set out in the Order Form.
- All Fees specified in an Order Form and this Agreement do not include any applicable sales, services, goods and services, harmonized sales or use taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of CleanAir.
- CleanAir reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then‑current Renewal Term, upon thirty (30) days prior notice to Customer.
- If Customer believes CleanAir has charged or invoiced Customer incorrectly, Customer must contact CleanAir no later than 30 days after having been charged by CleanAir or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- If CleanAir bills through an invoice, full payment must be received by CleanAir thirty (30) days after the mailing date of the invoice. Customer may not withhold or setoff any amounts due under this Agreement. Unpaid amounts are subject to a finance charge of 1.5% per month (19.56% per year) on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of CleanAir Services.In addition to all other remedies available under these the terms of the Order Form or at law (which CleanAir does not waive by the exercise of any rights hereunder), CleanAir will be entitled to suspend the delivery of any Hardware or performance of any CleanAir Services if Customer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof.
5. Term and Termination
- Subject to earlier termination as provided below, this Agreement including any Supplemental Terms, is for the initial term specified in the Order Form(“Initial Term”). Except as otherwise set out in the Order Form, this Agreement will automatically renew for successive one-year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the Initial Term or then-current Renewal Term.
- Either Party may terminate this Agreement (including all related Order Forms) by giving to the other Party written notice of termination upon the occurrence of any of the following events: (a) the other Party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (b) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.
- In addition to the rights and remedies provided under Section 5.2, CleanAir may terminate the Agreement with immediate effect upon written notice to Customer if Customer fails to pay any amount when due under the Agreement and such failure continues for 5 days after Customer’s receipt of written notice of nonpayment.
Upon expiration or termination of this Agreement:
- Customer will immediately cease (and ensure that all End Users immediately cease) accessing or using the CleanAir-as-a-Service; and (ii) Customer shall return all applicable CleanAir Property in its possession and certify in writing to CleanAir that the CleanAir Property has been returned.
- Termination of this Agreement or an Order Form will not relieve Customer from its obligation to pay CleanAir any Fees stated in an Order Form.
- All Fees due and payable and any amounts due to CleanAir are immediately due and are to be immediately paid by Customer to CleanAir.If an Order Form or this Agreement is terminated for convenience by Customer, Customer will remain liable to pay the full Fees outstanding on the effective date of termination of that Order Form and this Agreement. CleanAir will invoice, and Customer will pay, any unbilled Fees and any unpaid Fees covering the remainder of the Term of the Order Form and this Agreement had it not been terminated.
- If this Agreement is terminated by CleanAir due to Customer’s material breach, Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement. CleanAir will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Term of that the Agreement and all Order Forms had it not been terminated.
- All Order Forms will terminate upon the termination of this Agreement. No new Order Forms may be entered into upon the termination of this Agreement.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, this section, accrued rights to payment, confidentiality obligations, indemnity, warranty,disclaimers, miscellaneous, indemnity and limitations of liability.
6. Warranty and Disclaimer
- Customer represents and warrants to, and covenants with CleanAir that Customer Data will only contain personal information in respect of which Customer has provided all notices and disclosures (including to each End User), obtained all applicable consents, and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable CleanAir to provide the CleanAir Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing, transmission and transfer of personal information, including by or to CleanAir and to or from all applicable third parties.
- CleanAirwill use commercially reasonable efforts to perform the applicable OnboardingServicesin a professional and workmanlike manner. Customer will be entitled to any limited Hardware warranty as set out in the applicable Supplementary Term. CleanAir-as-a-Servicemay be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CleanAir or by third-party providers, or because of other causes beyond CleanAir’s reasonable control, but CleanAirwill use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
- OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CLEANAIR DOES NOT WARRANT THAT THE CLEANAIR SERVICES (INCLUDING WITHOUT LIMITATION ANY SOFTWARE, HARDWARE OR PRODUCT FIRMWARE) WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CLEANAIR SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE CLEANAIR SERVICES (INCLUDING WITHOUT LIMITATION ANY HARDWARE, SOFTWARE OR PRODUCT FIRMWARE)ARE PROVIDED “AS IS”.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEANAIR HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, AIR QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF, OR INABILITY TO USE CLEANAIR SERVICES, (INCLUDING WITHOUT LIMITATION ANY PRODUCT FIRMWARE) IS ENTIRELY AT CUSTOMER’S OWN RISK. FOR HARDWARE OR PRODUCTS NOT CREATED OR MANUFACTURED BY CLEANAIR, NO WARRANTIES EITHER EXPRESSED OR IMPLIED ARE MADE; AND CUSTOMER’S RECOURSE SHALL BE SOLELY AGAINST THE CREATOR OR MANUFACTURER. CLEANAIR MAKES NO WARRANTY THAT THE HARDWARE AND PRODUCT FIRMWARE WHEN PLACED IN OPERATION BY CUSTOMER AND USE BY CUSTOMER OR ITS END USERS WILL COMPLY WITH FEDERAL, STATE, LOCAL, MUNICIPAL, OR PROVINCIAL LAW, RULE, REGULATION, OR ORDINANCE.
- Customer will indemnify, defend and hold CleanAir,its affiliates, and their respective employees, officers, directors, agents, contractors, successors, and assigns,(each a “CleanAir Indemnitee”) harmless from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by a CleanAir Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”), arising from or in connection with: (i) Customer Data; (ii)Customer or its End User’s breach or violation of the terms and conditions of this Agreement;(iii) any death, sickness, disease or injury of any kind, of any person to the extent caused by any negligent act or omission of Customer, its End Users or Customer’s personnel; (iv) any damage, loss or destruction of any tangible, real, personal or intangible property: (A) while in the possession or control of Customer; or (B) to the extent caused by any act or omission or negligence of Customer; (v) gross negligence, wilful misconduct or fraud or Customer or its End Users; or (vi) Customer’s breach of any applicable laws.
- CleanAir will defend, indemnify and hold harmless Customer, its employees, officers, directors, agents successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses,finally awarded by a court of competent jurisdiction, incurred by a Customer Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Customer) that arise from or relate to any allegation that the CleanAir Solution infringes any third-party Intellectual Property Right in Canada. Provided, however, that the obligations of CleanAir in this Section 7.2 will not apply to any Action or Losses arising out of or relating to any: (i) third-party products; (ii) modification of the CleanAir Solution by anyone other than CleanAir; (iii) unauthorised use of the CleanAir-as-a-Service by Customer or any End Users; (iv) incorporation of any CleanAir Solution into, or any combination, operation, or use of any CleanAir Solution with, any products or services not provided by CleanAir, including Third-Party Products; or (v) any Customer’s indemnity in Section 7.1. THIS SECTION 7.2 STATES THE CLEANAIR’S SOLE LIABILITY TO, AND THE CUSTOMER INDEMNITEES EXCLUSIVE REMEDY AGAINST, CLEANAIR FOR ANY THIRD PARTY CLAIM DESCRIBED IN THIS SECTION.
- If Customer or any End User is enjoined from using the CleanAir Solution or CleanAir reasonably believes they will be enjoined, CleanAir will have the right, at its sole option, to obtain for Customer and its End Users the right to continue use of the CleanAir Solution or to replace or modify the CleanAir Solution so that they are no longer infringing; provided that if neither of the foregoing options is reasonably available to CleanAir, then this Agreement may be terminated by CleanAir. THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- For any Action covered under Sections 7.1 and 7.2, the indemnified Party will: (i) promptly give written notice of the claim to the indemnifying Party (although a delay of notice will not relieve the indemnifying Party of its obligations under this Section 7, except to the extent that the indemnifying Party is prejudiced by such delay); (ii) give the indemnifying Party sole control of the defense and settlement of the claim (although the indemnifying Party may not settle any claim without the indemnified Party’s written consent; and (iii) provide to the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance.
8. Limitations of Liability
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- SUBJECT TO SECTION 8.3, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF SUPPORT FEES PAID BY CUSTOMER FOR THE CLEANAIR-AS-A-SERVICE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL CLEANAIR’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- SUBJECT TO SECTION 3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (1) SAVINGS, (2) PROFIT, (3) USE, OR (4) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- SECTIONS 8.1 AND 8.2. WILL NOT APPLY TO LIMIT: (I) EITHER PARTY’S LIABILITY OR OBLIGATIONS PURSUANT TO SECTIONS 7.1 AND 7.2; (II) CUSTOMER’S BREACH OF SECTION 3 (CONFIDENTIALITY; PROPRIETARY RIGHTS), SECTION 6.1 OR SECTION 4 (PAYMENT OF FEES); OR (III) EITHER PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with CleanAir’s prior written consent. Any purported assignment or delegation by the Customer in violation of this Section will be null and void. CleanAir may transfer and assign any of its rights and obligations under this Agreement without consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Notwithstanding the foregoing, CleanAir reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the CleanAir Services (or any part thereof) with or without notice. CleanAir reserves the right to change this Agreement at any time and from time to time. Any new features that may be added to the CleanAir Services from time to time will be subject to this Agreement, unless stated otherwise. Customer is responsible for regularly reviewing this Agreement, including, without limitation, by checking the date of “Last Update” at the top of this document. CleanAir may also, at CleanAir’s option, choose to notify Customer of such changes by e-mail or other means. If the modified Agreement is not acceptable to Customer, Customer’s only recourse is to stop using the CleanAir Services. Customer’s continued access to and use of the CleanAir-as-a Service or Onboarding Services will constitute the Effective Date to such updated Agreement.Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the CleanAir Services; (ii) do not override or form a part of this Agreement (including without limitation any Supplementary Term or Order Form); and (iii) are void. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs andlegal fees. All notices sent to either Party will be in writing and addressed to the receiving Party at the addresses set forth on the Order Form. Each Party may change its contact information for notice by giving notice thereof to the other Party. Notices sent will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid.Notwithstanding the forgoing, notices to Customer may be made via email or regular mail, or in cases of changes to the Agreement or to the CleanAir Services offered through the CleanAir-as-a-Service, by posting notices or links to such notices, or by posting an updated version of the Agreement on the Dashboard or CleanAir-as-a-Service itself. Neither Party will be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that Party, without such Party’s fault or negligence, and which by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction. Customer will not to directly or indirectly export or re-export any of the CleanAir-as-a-Service without first obtaining all required licenses, permits and permissions required under applicable law.CleanAir makes no representation or warranty that the CleanAir-as-a-Service may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained. CleanAir may identify Customer by name and logo as a CleanAir customer on its website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer. CleanAir’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volontéexpresse des parties que la présente convention ainsi que les documents qui s’yrattachentsoientrédigésenanglais.
Supplementary Terms and Conditions for Hardware
Last updated: l, 2022
These Supplementary Term willapply to the Hardwarepurchased by Customer from CleanAir under an Order Formand is incorporated into, and form part of, the Agreement. Capitalized terms not otherwise defined in these Supplementary Term will have the meanings ascribed to such terms in the Agreement.
1. Shipping and Delivery of Hardware
- CleanAir will deliver the Hardware identified in the Order Form, on the date specified in the Order Form or as otherwise agreed in writing by the Parties (“Delivery Date”). If no Delivery Date is specified, CleanAir will deliver the Hardware within a reasonable time after the Order Form has been executed.
- All Hardware will be delivered to the address specified in the Order Form (“Delivery Location”) during Customer’s normal business hours or as otherwise agreed to by the Parties.
- If multiple Delivery Locations are specified in the Order Form, Hardware will be shipped to each Delivery Location following the site list section of the Order Form. If Customer wishes to have the Hardware shipped to an alternate delivery point, this must be specified in the Order Form.
- Delivery dates specified in the Order Form, or any communications between CleanAir representatives and Customer are approximate, unless specified as firm and binding.
- Unless otherwise agreed upon in the Order Form, Customer will be responsible for all shipping costs, which will be added to CleanAir’s final invoice to Customer.
- Unless otherwise agreed to in the Agreement, delivery will be made EX Works. CleanAir will give written notice of shipment to Customer when the Hardware is delivered to a carrier for transportation. Customer will give written notice to CleanAir upon receipt of the Hardware.
- Customer is responsible for installation of Hardware at any Delivery Location.
2. Title and Risk of Loss
- Title to the Hardware passes to Customer on the later of: (a) delivery of the Hardware to the Delivery Location; and (b) receipt by CleanAir of payment in full of amounts due for the Hardware. Customer bears all risk of loss or damage to the Hardware during delivery of the Hardware to the Delivery Location.
- Except to the extent caused by the gross negligence or willful misconduct of CleanAir, Customershall accept all responsibility for all losses, costs, expenses, damages, injuries, actions, claims, or theft to the Hardware. Furthermore, CleanAir shall not be liable for operation or use of the Vehicle in violation of any federal, state, local or provincial law, rule, regulation or ordinance or outside of a controlled environment.
3. Inspection and Rejection of Non-Conforming Hardware.
3.1. Customer will inspect the Hardware within five days of the Delivery Date (“Inspection Period”). Customer will be deemed to have accepted the Hardware unless it notifies CleanAir in writing of any Non-Conforming Hardware (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by CleanAirand acceptance date (“Acceptance Date”) will be the five days from the Delivery Date. “Non-Conforming Hardware” means Hardware shipped that is different than identified in the Order Form, has missing components or has visible defects.
3.2. Unless otherwise specified in the Order Form, if Customer notifies CleanAir within the five day period above of any Non-Conforming Hardware, CleanAir will, in its sole discretion replace such Non-Conforming Hardware with replacement Hardware or credit or refund the Fees for such Non-Conforming Hardware. Customer will ship, at CleanAir’s expense and risk of loss, Non-Conforming Hardware designated for return to the location at 510 Coronation Drive Scarborough, ON M1E 4X6 Unit 22. If CleanAir exercises its option to replace Non-Conforming Hardware, CleanAir will, after receiving Customer’s shipment of Non-Conforming Hardware, ship to Customer, at CleanAir’s expense and risk of loss, the replacement Hardware to the Delivery Location.
3.3. Customer acknowledges and agrees that the remedies set forth in Section 3.2 are Customer’s exclusive remedies for the delivery of Non-Conforming Hardware. Except as provided under Section 3.2 all sales of Hardware to Customer are made on a one-way basis and Customer has no right to return Hardware purchased under the Order Form to CleanAir.
4. Limited Warranty
Subject to Section 6:
- for Hardware specified in the Order Form(“AS Warranted Hardware”), CleanAir warrants that the AS Warranted Hardware will be free from defects in materials and workmanship commencing from theAcceptance Date and continuing for the Term of Customer’s subscription to the CleanAir-as-a-Service (the “Warranty Period”),
- during the Warranty Period, regarding any defective AS Warranted Hardware: (A) notwithstanding anything in the Agreement to the contrary, CleanAir’s liability under any Hardware Warranty is discharged, in CleanAir’s sole discretion and at CleanAir’s expense, by: (1) replacing the defective AS Warranted Hardware; or (2) crediting or refunding the Fees paid for the defective AS Warranted Hardware, less any applicable discounts, rebates or credits; (B) Customer is responsible for all risk of loss associated with the transportation of defective AS Warranted Hardware to CleanAir at the location specified by CleanAir for warranty repair or replacement; and (C) CleanAir is responsible for all costs and risk of loss associated with the delivery of repaired or replaced AS Warranted Hardware to Delivery Location.
- In order to claim any warranty under this Supplementary Term, Customer must:
- notify CleanAir of any performance issue or warranty claims:firstname.lastname@example.org.
- facilitate CleanAir’s reasonable investigation of warranty claims, which may require provision of operating data, and on-site inspection of equipment, or return of Hardware to CleanAir, at CleanAir’s option.
iii. be issued a return material authorization (RMA) prior to returning the AS Warranted Hardware. Unauthorized returns will be rejected and returned at the Customer’s expense.
- Customer has no right to return any Hardware forreplacement except as set out in this Section 4.
- The Customer is responsible for all risk of loss associated with the transportation of defective AS Warranted Hardware to CleanAir for warranty replacement. CleanAir is responsible for all risk of loss associated with the delivery of the replaced AS Warranted Hardwareback to the Customer.
- Returned AS Warranted Hardware found, upon inspection by CleanAir, to be in specification and not defective may be subject to an inspection fee and applicable freight charges.
CleanAirwill provide Customer with all specifications, and any other materials that CleanAir has created that describe the requirements, features and functions of the Hardware as such may be amended from time to time (“Documentation”).
Notwithstanding any provisions to the contrary in this Agreement, the limited warranties set forth in Section do not apply to defects arising out of or relating to:
(i) any Hardware or Product Firmware that is modified or damaged by Customer, End Users or its representatives;
(ii) any operation or use of, or other activity relating to, the Hardware or Product Firmware other than as instructed by CleanAir;
(iii) Customer’s or any third party’s negligence, abuse, misapplication, or misuse of the Hardware or Product Firmware;
(iv) Customer’s failure to promptly install all updates, upgrades and releases to Product Firmware that CleanAir has made available to Customer; or
(v) any other circumstances or causes outside of the reasonable control of CleanAir (including abnormal physical or electrical stress).
Supplementary Terms and Conditions for CleanAirSmart Plan
Last updated: l, 2022
These Supplementary Term willapply to thefilter changeservices as specified in an Order Formand willtake effect as of the date of Smart Plan Activationas defined herein and be incorporated into, and form part of, the Agreement. Capitalized terms not otherwise defined in these Supplementary Term will have the meanings ascribed to such terms in the Agreement.
- “SmartPlan” means filter monitoring and replacement of thefilter in Hardware. For Hardware to qualify for Smart Plan, they must be purchased from CleanAir in accordance with CleanAir’s Supplementary Term and Conditions for Purchase of Hardware and connected to CleanAir’s CleanAir-as-a-Service.
- “Covered Hardware” means Hardware which have an active Smart Plan that has been fully paid up pursuant to the Order Formand subsequent CleanAir’s invoices.
- “Smart Plan Activation” is the confirmation from CleanAir that Customer’s Smart Plan is active following a successful Site Validation. Any costs related to installing, configuring, or repairing Hardware before Smart Plan Activation are not covered by this the Smart Plan. Connecting Hardware to CleanAir’s network does not constitute Smart Plan Activation.
- “Site Validation” is the process by which CleanAir validates the installation of Hardware to ensure they qualify for Smart Plan.
2. Smart Plan
Subject to the terms of this Agreement, CleanAir will use commercially reasonable efforts to:
- Provide monitoring of applicable Hardware(as set out in an Order Form) through CleanAir-as-a-Service.
- Notify Customer of filter changes required for Covered Hardware and delivering to Customer replacement filters for Covered Hardware as set out per the schedule set out in the Order Form.
Smart Plan does not cover:
- Equipment other than the Covered Hardware, including electrical infrastructure (such as panels, breakers, conduit, cables, modems, cellular signal repeaters or other surfaces).
- Cosmetic damages that do not impact the functionality of the Hardware, including normal wear and tear, scratches, dents, and discoloration.
- Hardware that have been altered, modified, or relocated by a third party without CleanAir’s written approval.
- Hardware that have been intentionally disconnected from CleanAir-as-a-Service.
- Damages caused by acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, computer attacks or malicious acts, pandemics or public health emergencies, strikes or other labour problems, Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
4. Restrictions and Responsibilities
- In order to be eligible for ongoing Smart Plan, Customer must maintain an active subscription to CleanAir-as-a-Service.
- Customer is responsible for installation of replacement filters on any Hardware.
- Customer will keep the area in which Hardware are installed clean, safe, and orderly, to at least the same standard Customer uses to maintain the remainder of the Delivery Location.
- Customer will promptly notify CleanAir of any suspected abnormal behavior or issues with any Hardware as soon as Customer becomes aware of the issue.