Conditions of Sale | PürHealth

PürHealth's Conditions of Sale

PürHealth Technologies Inc. - Conditions of Sale

These Conditions of Sale are applicable to all products and services between PürHealth Technologies Inc, a Canadian Corporation whose principal place of residence is in Montreal, Quebec, Canada (“PürHealth") and the Purchaser(s) of any products and services (“Purchaser”).

(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)

Orders
1. Use of Standard Form. Purchaser will submit purchase orders for the Products on standard form ("Purchase Orders").
  1. Contents of Order. Purchaser will include in each Purchase Order
    1. each Product it is ordering, identified by model or part number,
    2. the amount of each Product it is ordering,
    3. the unit price of each Product it is ordering,
    4. Purchaser freight account information
    5. the location for delivery, and
    6. the delivery date, allowing reasonable time for PürHealth to receive, review, and process the Purchase Order and to ship the Products (the "Delivery Date").
  2. PürHealth's Acceptance or Rejection.
    1. Notice of Acceptance or Rejection. Within [three] Business Days of receiving Purchaser's Purchase Order, PürHealth will notify Purchaser whether it is accepting or rejecting the Purchase Order.
    2. Acceptance and Deemed Acceptance or Orders. The parties will be bound by the Purchase Order
      1. when PürHealth gives Purchaser notice of its acceptance, or
      2. if PürHealth fails to notify Purchaser of its acceptance or rejection within [three] Business Days of receiving Purchaser's Purchase Order.
    3. Waiver of Objections. PürHealth will be deemed to have waived any objection to the terms of a Purchase Order on its delivery of the Products detailed in the Purchase Order.
    4. Reasons for Rejection. PürHealth will include in its notice of rejection include specific grounds for the rejection.
    5. Modification. PürHealth may propose a modification to a Purchase Order by including in its notice to Purchaser a modified Purchase Order, for Purchaser to accept or reject according to the acceptance and rejection procedures under this section.
Delivery of Products
1. Delivery. PürHealth will deliver each order of Products to Purchaser
  1. on the Delivery Date and to the location specified in the applicable Purchase Order,
  2. using the purchasers indicated freight account or any alternative delivery method the parties agree to in writing.
2. Risk of Loss Shifts on Delivery. PürHealth will remain liable for any damages, losses, or defects to the Products until the Products are delivered to Purchaser’s carrier, after which the Purchaser will be solely liable.
Price. Purchaser will pay PürHealth's list price for each Product, as listed on the PürHealth’s Quotation or Order Acknowledgement applicable to the Purchaser’s purchase order.
Payment of List Prices
1. Invoice Delivery. PürHealth will invoice Purchaser for each delivery of Products within [seven] Business Days after Purchaser accepts the delivery.
2. Invoice Procedure and Requirements. PürHealth will
  1. make each invoice to Purchaser in writing, including
    1. an invoice date and number,
    2. the total amount due, and
    3. the calculation of the total amount, and
  2. send each invoice to the recipient Purchaser specifies
Payment. Purchaser will pay each invoice
1. within the indicated payment terms (days) indicated,
2. in immediately available funds,
3. to the account PürHealth specifies on the invoice
Taxes. Payment amounts under this agreement do not include Taxes. Purchaser will pay all Taxes applicable to payments between the parties under this agreement.
Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.
Term. This agreement begins on purchase order and terminates with the product warranty
Limited Warranty
1. Warranty. Purchaser warrants that the Products
  1. will be free from material defects,
  2. are made with workmanlike quality, and
  3. will conform, within normal commercial tolerances, to the applicable specifications.
2. Replacement Products. Subject to paragraphs [NOTICE REQUIREMENT] and [EXCLUSIONS] directly below, Purchaser's sole remedy for breach of this limited warranty will be PürHealth providing Purchaser with a replacement Product, at PürHealth's sole expense.
3. Notice Requirement. PürHealth will only be required to replace Products under paragraph [REPLACEMENT PRODUCTS] if it receives written notice from Purchaser of such defect or nonconformity within 10 days after delivery of the Products.
4. Exclusions. This warranty does not extend to any Product Purchaser abuses, neglects, or misuses according to the applicable documentation or specifications, or to any Product Purchaser has had repaired or altered by a Person other than PürHealth.
Intellectual Property Ownership. Subject to any license explicitly granted under this agreement necessary for Purchaser's use of a Product that incorporates software, no transfer of any right, interest, or ownership of any Intellectual Property will occur under this agreement.
Representations
1. Mutual Representations
  1. Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
  2. Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
  3. Execution and Delivery. The parties have duly executed and delivered this agreement.
  4. Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
  5. No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.
  6. No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under
    1. its articles, bylaws, or any unanimous shareholders agreement,
    2. any Law to which it is subject,
    3. any judgment, Order, or decree of any Governmental Authority to which it is subject, or
    4. any agreement to which it is a party or by which it is bound.
  7. Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to
    1. own, lease, and operate its properties, and
    2. conduct its business as it is now carried on.
  8. No Disputes or Proceedings. [Except as disclosed in the parties respective Disclosure Schedules] There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.
  9. No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
2. PürHealth's Representations
  1. Ownership. PürHealth is the sole owner of the Products, free of any claims by a third party and free of any Encumbrance.
  2. Legal Right. PürHealth has the [exclusive] right to transfer the Products.
  3. No Prior Transfer. PürHealth has not sold, transferred, or assigned, and is not obligated to sell, transfer, or assign any of the Products to any third party that would conflict with a transfer under this agreement.
  4. No Infringement. Neither party's use of the Product infringes on or constitutes a misappropriation of the Intellectual Property or other rights of any third party. [Except as listed in PürHealth's Disclosure Schedule]
Support Services
1. Initial Support. For the [12] month period beginning on the Effective Date, and at PürHealth's own expense, PürHealth shall provide Purchaser with
  1. telephone or electronic support during PürHealth's normal business hours in order to help Purchaser locate and correct problems with the Products, and
  2. internet-based support system generally available seven days a week, twenty-four hours a day. (non-live)
2. Renewed Support. After the initial [12] month support period, Purchaser may elect to renew PürHealth's support services under this paragraph [SUPPORT] for additional [12] month periods, at PürHealth's then-current service rates, solely at the discretion of PürHealth
Confidentiality Obligations. If applicable, the parties continue to be bound by the terms of the non-disclosure agreement between the parties.
Infringement
1. Defense Against Claims. Subject to paragraph [EXCEPTIONS], PürHealth shall defend any claims against Purchaser that allege that a Product infringes the Intellectual Property rights of a third party if Purchaser
  1. promptly notifies PürHealth of the claim in writing,
  2. cooperates with PürHealth in defending the claim, and
  3. grants PürHealth sole control of the defense and settlement of the claim.
2. PürHealth Actions
  1. Modify or License. In case of infringement, PürHealth may
    1. modify the Product to be non-infringing and materially equivalent, or
    2. procure a license from the third party to allow for the continued use of the Product.
    3. Reclaim the infringing product
  2. Refund. If PürHealth cannot modify the Product or obtain a license for its continued use, PürHealth shall refund Purchaser the price of the product, subject to into account any depreciation in value.
3. Exceptions. PürHealth's obligations under this section [INFRINGEMENT] will not apply to claims arising out of Purchaser's unauthorized use of the Products and as listed in PürHealth's Disclosure Schedule.
Compliance with Laws. Each party will
1. comply with all applicable Laws [relating to [SUBJECT MATTER OF AGREEMENT]], and
2. notify the other party if it becomes aware of any non-compliance in connection with this section.
Export Control Laws. Each party shall obtain all Permits necessary to and otherwise comply with all Laws on export control applicable to this agreement and all transactions contemplated under this agreement.
Termination
1. Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
  1. the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
  2. the failure, inaccuracy, or breach continues for a period of 90 Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach.
Effect of Termination
1. Termination of Obligations. Subject to paragraph [PAYMENT OBLIGATIONS], on termination or expiration of this agreement, each party's rights and obligations under this agreement will cease immediately.
2. Payment Obligations. Even after termination or expiration of this agreement, each party will
  1. pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and
  2. refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.
3. No Further Liability. On termination or expiration of this agreement, neither party will be liable to the other party, except for liability
  1. that arose before the termination or expiration of this agreement
Indemnification
1. Indemnification by Purchaser. Purchaser (as an indemnifying party) shall indemnify PürHealth (as an indemnified party) against all losses and expenses arising out of any proceeding
  1. brought by either a third party or PürHealth, and
  2. arising out of Purchaser's breach of its obligations, representations, warranties, or covenants under this agreement, or
  3. arising out of Purchaser's misuse or unauthorized modification of the Products or damage to the Products caused by Purchaser, or its employees, agents, or customers.
2. Notice and Failure to Notify
  1. Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
    1. notify the indemnifying party of the indemnifiable proceeding, and
    2. deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
  2. Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.
Limitation on Liability
1. Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
2. Maximum Liability. PürHealth's liability under this agreement will not exceed the product prices paid by Purchaser under this agreement during the 12 months preceding the date upon which the related claim arose.
Definitions

"Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business.
"Delivery Date" is defined in section [ORDERS].
"Disclosure Schedule" means the schedule which lists, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party.
"Effective Time"
"Encumbrances" means any pledges, liens, charges, security interests, leases, title retention agreements, mortgages, restrictions, developments or similar agreements, easements, rights-of-way, title defects, options, adverse claims, or encumbrances of any kind.
"Governmental Authority" means
(a) any federal, state, local, or foreign government, and any political subdivision of any of them,
(b) any agency or instrumentality of any such government or political subdivision,
(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
(d) any arbitrator, court or tribunal of competent jurisdiction.
"Intellectual Property" means any and all of the following in any jurisdiction throughout the world
(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
(b) copyrights, including all applications and registrations related to the foregoing,
(c) trade secrets and confidential know-how,
(d) patents and patent applications,
(e) websites and internet domain name registrations, and
(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
"Law" means
(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
"Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
"Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
"Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.
"Person" includes
(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
(b) any individual.
"Products" means any of PürHealth's products, as listed [on PürHealth's website at www.purhealth.ca , subject to approval for sale to Purchaser by PürHealth.
"Product Orders" is defined in section [ORDERS].
"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
"Term" is defined in section [TERM].

22. General Provisions

Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
1. represent the final expression of the parties' intent relating to the subject matter of this agreement,
2. contain all the terms the parties agreed to relating to the subject matter, and
3. replace all of the parties' previous discussions, understandings, and agreements relating to the subject matter of this agreement.
Amendment. This agreement may be amended by PürHealth from time to time and PürHealth will keep a current version only on www.purhealth.ca
Binding Effect. These terms of sale will benefit and bind the parties and their respective heirs, successors, and permitted assigns.
Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's written consent.
Notices
1. Method of Notice. The parties will give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid to the address that a party has notified to be that party's address for the purposes of this section.
2. Receipt of Notice. A notice given under this agreement will be effective on
  1. the other party's receipt of it, or
  2. if mailed, the earlier of the other party's receipt of it and the fifth business day after mailing it.
Dispute Resolution
1. Arbitration. Any dispute or controversy arising out of this agreement and will be settled by arbitration in Quebec, Canada according to the rules of the American Arbitration Association then in effect.
2. Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction.
3. Arbitrator's Authority. The arbitrator will not have the power to award any punitive [or consequential] damages.
Governing Law. This agreement will be governed, construed, and enforced in accordance with the laws Civil Code of Québec and the Code of Civil Procedure.
Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
Interpretation
1. References to Specific Terms
  1. Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").
  2. Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.
  3. "Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."
  4. "Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:
    1. the then-current, actual knowledge of the directors and officers of that party, and
    2. the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.
  5. Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.
2. Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
3. Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.
4. Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.
5. Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. EST (Eastern Standard Time) on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. EST (Eastern Standard Time) on the next Business Day.
6. Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.
7. Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of these conditions of sale will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of conditions of sale.

23. Waiver

Affirmative Waivers. Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.
Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

PürHealth's Disclosure Schedule

UV-C Disinfection Technology and Handrail Disinfection, Sterilizing and Cleaning products have numerous patents, patent applications and prior art which comprise wide-ranging and complicated claims. At the time of this publication, PürHealth has identified over 40 such cases with varying claims that may or may not be similar to technology and designs of the products PürHealth represents.

In addition, PürHealth’s manufacturing partner Clearwin Company LTD (South Korea), may also be subject to claims that may or may not be similar to technology and designs of the products PürHealth represents.

PürHealth will make best efforts to respond to, at PürHealth’s discretion, any claims of infringement, copy or other that may be made against its products. However, it is solely at PürHealth’s decision as to what steps will be taken and PürHealth will not be liable for any costs, damages or financial claims made in particular related to the following disputed patents:

US 10160622 B2
KR 101665676
KR101839510 B1
USD869811S1

PürHealth will support a strong response of claims on the above patents however it is solely at PürHealth’s decision as to what steps will be taken. PürHealth and PürHealth’s manufacturing partner strongly dispute any statements or claims made on the use of, or infringement of the above listed patents.