THESE GENERAL TERMS AND CONDITIONS FOR PRODUCT SALES (“Terms”) CONSTITUTE A BINDING AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED ABOVE (“Customer”) AND Nutech Fire Prevention (“Company”). BY SIGNING ABOVE, CUSTOMER ACCEPTS THIS PROPOSAL (“Proposal”) TO PURCHASE THE PRODUCTS IDENTIFIED IN THE PROPOSAL FROM COMPANY (“Products”) AND AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS. EACH OF CUSTOMER AND COMPANY ARE A “party” AND TOGETHER, THE “parties”.

These Terms contain the entire understanding of the parties with respect to the Products and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the Products. Any additional or different terms set forth or referenced in any other document or communication are null and void.

For the avoidance of doubt, these Terms relate only to the Products purchased by the Customer from the Company, and does not relate to services or projects offered or provided by or on behalf of the Company. The terms relating to Company’s project and service offerings shall be those set out in the “General Terms and Conditions for Services/Projects”.

1. Payment and Taxes
Customer agrees to pay the total purchase price for Products plus shipping, installation and other costs identified in the Proposal. Customer will pay any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, sales tax or other charges (including but not limited to environmental or similar fees), imposed on, in respect of or otherwise associated with all of the Products. If Customer claims any such taxes do not apply to transactions covered by the Proposal, Customer will provide Company with a tax exemption certificate acceptable to the applicable taxing authorities at the time of accepting the Proposal.

Customer will pay for the Products as invoiced by Company in accordance with the Proposal. Invoices are due and payable within 30 days of receipt of the invoice, unless otherwise stipulated in that invoice. All references to money amounts are to lawful currency of Canada, unless otherwise stipulated in that invoice.

Customer agrees to pay interest on all past-due sums at one percent (1%) per month. In the event of overdue payment, Company may immediately suspend or terminate any future shipments of Products upon notice to the Customer until payment is made in full (including any applicable interest). In the event of a payment default, Customer will be responsible for all of Company’s costs of collection, including, but not limited to, lawyers' fees.

2. Shipment, Title and Risk of Loss
If the Proposal states that Products are to be installed by the Company, then title to Products and risk of loss or damage to any Products pass from Company to Customer when the Product arrives at the site of installation (“Site”) which is set out in the Proposal or otherwise agreed to in writing by the parties (C.I.F. at the Site). The parties will agree in writing as to the date(s) and time(s) for installation of the Products.

If the Proposal does not state that Products are to be installed by the Company, then title to Products and risk of loss or damage to any Products pass from Company to Customer when Company provides the products to the shipment carrier (F.O.B. at Company’s factory, warehouse or office as applicable). Company will use reasonable efforts to ship Products within a reasonable time after Customer accepts the Proposal. Company may, at its discretion, make partial shipments of Products to Customer.

Company will not be liable for damage to or loss of Products after title to the Products is passed from Company to Customer.

Notwithstanding the foregoing, ownership of all intellectual property rights within the Products remain with Company or the applicable licensor(s). Customer will have a non-exclusive, non-transferrable license to use the Products in accordance with the Product description. Customer acknowledges and agrees that Company does not grant to Customer any rights in Products which Company does not own or have the right to grant to Customer.

3. Returns and Termination
All Product sales are final.

Company may terminate an order for Products upon written notice to Customer in the event of supply shortages or if Customer is in material default of any payment obligations to Company.

Either party may terminate an order for Products immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 30 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

In the event of any termination of an order for Products, Customer will pay Company for all expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Proposal or invoice. Upon termination, all rights and obligations of the parties under these Terms will automatically terminate in respect of the Products except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Products and this survival provision).

4. Confidentiality
"Confidential Information" means all information disclosed by or on behalf of Company (whether orally or in writing) which is identified as confidential at the time of disclosure or which by its character or the circumstances or manner of its disclosure would reasonably be considered confidential, including all trade secrets, know-how, inventions, developments, software, and other proprietary business or technical information. The Customer will incur no obligations hereunder with respect to information which it can demonstrate by written record: (a) was in the Customer’s possession or was known to the Customer prior to its receipt from Company; (b) is independently developed by the Customer without the utilization of such Confidential Information; (c) is or becomes public knowledge through no fault of the Customer; or (d) is or becomes available to the Customer from a source other than Company without an obligation of confidentiality.

All Confidential Information obtained by Customer in connection with the Products will remain the property of Company, and Customer will not divulge such information to any third party without the prior written consent of Company.

If Customer is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information, the Customer will give the Company prompt notice of such request (to the extent permitted by applicable law) so that the Company may seek an appropriate protective order or similar protective measure. If Customer remains required to disclose any Confidential Information, Customer shall only disclose that portion of the Confidential Information that it is legally required to disclose and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.

Customer agrees that, in the event of any breach or threatened breach of this section, the Company will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the Company shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety.  

Customer agrees that Company may use non-proprietary information pertaining to the Products, for press releases, case studies, data analysis, promotional purposes, and other similar documents or statements to be publicly released, as long as Company submits any such document or statement to Customer for its prior approval, which will not be unreasonably withheld.

5. Hazardous Substances, Mould and Unsafe Conditions
“Hazardous Substance” includes all of the following, and any by-product of or from any of the following, whether naturally occurring or manufactured, in quantities, conditions or concentrations that have, are alleged to have, or are believed to have an adverse effect on human health, habitability of a site, or the environment: (a) any dangerous, hazardous or toxic pollutant, contaminant, chemical, material or substance defined as hazardous or toxic or as a pollutant or contaminant under state or federal law, and (b) any petroleum product, nuclear fuel or material, carcinogen, asbestos, urea formaldehyde, foamed-in-place insulation, polychlorinated biphenyl (PCBs), and (c) any other chemical or biological material or organism, that has, is alleged to have, or is believed to have an adverse effect on human health, habitability of a site, or the environment.

“Mould” means any type or form of fungus or biological material or agent, including mould, mildew, moisture, yeast and mushrooms, and any mycotoxins, spores, scents, or by-products produced or released by any of the foregoing. This includes any related or any such conditions caused by third parties.

If the Proposal states that Products are to be installed by the Company, Customer confirms that it has not observed or received notice from any source (formal or informal) of (a) Hazardous Substances or Mould, either airborne or on or within the walls, floors, ceilings, heating, ventilation and air conditioning systems, plumbing systems, structure, and other components of the Site, or within furniture, fixtures, equipment, containers or pipelines in a Site; or (b) conditions that, to Customer’s knowledge, might cause or promote accumulation, concentration, growth or dispersion of Hazardous Substances or Mould on or within such locations.

If any Hazardous Substances or Mould, whether disclosed or not, are discovered by Company or others and provide an unsafe condition for the installation of the Products, Company will have the right, upon notice to Customer, to terminate installation of the Products without penalty.

6. Warranty and Limitation of Liability
Company will repair or replace Products within one year from the date of acceptance of the Proposal (“Warranty Period”) in the case of defective workmanship or materials, except to the extent caused by the negligence by anyone other than Company or Company’s subcontractors, installation or repair by anyone other than Company or Company’s subcontractors, improper maintenance, misuse, alteration, lack of reasonable care, abnormal environmental conditions, shipping damage, or any other cause beyond Company’s control.

In order to initiate the warranty procedure, Customer must provide written notice of defect to [info@fireplus.ca] within the Warranty Period. Company will repair or replace a defective Product, at Company’s sole discretion. Customer must ship back the defective Product to Company in accordance with Company’s written instructions. Company will pay the costs of return shipping for Products found to be defective. If a Product is shipped back to Company but found not to be defective, then Customer will be responsible for all associated shipping costs.

TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING OUT OF OR RELATED TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

7. Indemnity
Company agrees to indemnify and hold Customer and its agents and employees harmless from all claims for bodily injury and property damages to the extent such claims result from Company’s gross negligence or willful misconduct in its installation of the Products, provided that such indemnity obligation is valid only to the extent (i) Customer gives Company immediate notice in writing of any such claims and permits Company, through counsel of its choice and Company’s sole cost and expense, to answer the claims and defend any related suit and (ii) Customer gives Company all needed information, assistance and authority, at Company’s expense, to enable Company to defend such suit. Company will not be responsible for any settlement without its written consent. Notwithstanding the foregoing, Company will not be liable for loss or damage to the extent caused by the Customer or any other party or such party’s employees or agents. This obligation will survive for a period of five years following installation of the Products.

To the fullest extent allowed by law, Customer will indemnify and hold Company harmless from and against any and all claims and costs of whatever nature, including but not limited to, consultants’ and lawyers’ fees, damages for bodily injury and property damage, fines, penalties, cleanup costs and costs associated with delay or work stoppage, that in any way results from or arises out of or relates to the existence of Mould or a Hazardous Substance at a Site, or Customer’s (or its employees’, agents’ or subcontractors’) negligence or wilful misconduct. This obligation will survive indefinitely.

8. Limitation of Liability
IN NO EVENT SHALL COMPANY BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, (I) LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS; (II) LOSS OF USE OF SYSTEMS, OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; AND (IV) BUSINESS INTERRUPTION OR DOWNTIME.

COMPANY’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS RELATING TO THE CLAIM.

9. Excusable Delays
Company will not be liable for damages caused by delay or interruption in shipping or installing the Products due to fire, flood, corrosive substances in the air, strike, lockout, dispute with workmen, inability to obtain material or services, commotion, war, acts of God, the presence of Hazardous Substances or Mould at a Site, or any other cause beyond Company’s reasonable control.

10. Dispute Resolution
Customer and Company agree that any controversy or claim between them arising out of or relating to this Products will be settled by arbitration, conducted in accordance with the Arbitration Rules of the Canadian Commercial Arbitration Center. Any award rendered by the arbitrator will be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

11. Miscellaneous
These Terms will be governed by the law of the province of Ontario.

If any provision of these Terms is held to be void or unenforceable under any laws or regulations will be deemed stricken, and all remaining provisions will continue to be valid and binding upon Company and Customer, who agree that the Terms will be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

The parties agree to comply with the provisions of all local, provincial, and federal laws that expressly or by implication apply to such party in performing its obligations under these Terms.

Company may assign or subcontract all or any portion of its rights or obligations with respect to the supply or installation of Products or assign the right to receive payments, without Customer's consent. Company will be responsible for the acts or omissions of its subcontractors.

Customer may not assign its rights or delegate its obligations under these Terms, in whole or in part, without the prior written consent of Company. Subject to the restrictions on assignment contained herein, these Terms will be binding on and enure to the benefit of the parties hereto and their successors and permitted assigns.

Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. No provision of these Terms will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.

The relationship between Company and Customer is that of independent contractors and not that of employer/employee, partnership, agency or joint venture.

Any notices required under these Terms will be given in writing at the contact information set out in the Proposal or an invoice, and deemed received upon the earlier of actual receipt, the date of transmission of a notice sent by email or five (5) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by courier.