Version Date: September 12, 2016
1. Applicable Terms and Conditions.
These terms and conditions of sale (these “Terms and Conditions”) apply to all products, software and any other items (the “Products”) and services (the “Services”) offered for sale by FreshAir Sensor, LLC ("FreshAir"). By placing an order for Products from FreshAir or by using FreshAir’s Services, the buyer (“Buyer”) agrees unconditionally to these Terms and Conditions. Except as expressly agreed by FreshAir in a writing signed by an authorized representative of FreshAir, no other terms and conditions shall apply, including, without limitation, any terms and conditions included with or attached to (a) any request for quotation from Buyer, (b) any acknowledgment, (c) any purchase order, (d) any e-mail communication or other communication, oral or written, or (e) any other documentation. FreshAir hereby expressly rejects, and notifies Buyer of its rejection of, any terms and conditions inconsistent with or in addition to these Terms and Conditions proposed by Buyer in accepting any FreshAir Products. These Terms and Conditions supersede any additional, different or conflicting terms and conditions that may be proposed by Buyer or contained in any purchase order or other communication between FreshAir and Buyer.
2. Prices, Taxes and Payment.
FreshAir reserves the right to change the prices and specifications of its Products and Services at any time without notice. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any federal, state or local governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event FreshAir is required to prepay any such tax, Buyer will reimburse FreshAir for the full amount thereof upon request from FreshAir. All orders shall be placed through the order form available on FreshAir’s website at www.freshairsensor.com or pursuant to a link sent by FreshAir to Buyer via e-mail, and shall be pre-paid when placed (except with respect to Service which shall be paid periodically in accordance with FreshAir’s standard pricing and policy with respect to such Services). All orders and the continuation of any Services shall be subject to approval by FreshAir in its sole discretion and FreshAir may cancel or refuse to accept any order in its sole discretion at any time after such order is placed and, if applicable, refund any payment thereon made by Buyer. If Buyer’s payment is revoked or cancelled for any reason after placing an order (including, without limitation, any credit card rejection or charge-back), FreshAir may, at its sole discretion, cancel such order or require payment by sending an invoice to Buyer. An interest charge equal to 1 1/2% per month (or such lesser amount as may be required by applicable law) will be added to invoices outstanding after shipment. Buyer hereby grants to FreshAir a purchase money security interest in the Products sold to Buyer and the proceeds thereof in the amount of the purchase price until such purchase price is indefeasibly paid in cash in full. Buyer hereby authorizes FreshAir to file such financing statements and other instruments that FreshAir desires to perfect, protect or enforce FreshAir’ security interest.
3. Delivery; Shipping; Risk of Loss.
FreshAir will use reasonable efforts to ship the Products hereunder as promptly as possible, provided that FreshAir accepts no liability for any losses or for general, special or consequential damages arising out of delays in shipment or delivery. All shipping costs shall be paid by Buyer, and if prepaid by FreshAir, Buyer shall reimburse the amount thereof to FreshAir upon request. Delivery terms for all Products shall be FOB shipping point. Transfer of title and risk of loss, in each case, shall pass from FreshAir to Buyer upon delivery by FreshAir or its shipping agent of product to a common carrier, or upon delivery directly from FreshAir or its shipping agent to Buyer or Buyer’s agent, whichever occurs first. Buyer shall make any and all claims for loss or damage to the Products in transit directly to the carrier and not to FreshAir. Buyer’s rejection of any Products shall not shift risk of loss until the Products are returned to Seller, freight prepaid, pursuant to Seller’s written authorization. Buyer understands and agrees that Section 2-510 of the Uniform Commercial Code shall not apply to Products purchased pursuant hereto.
Buyer shall be responsible for inspecting all Products prior to acceptance. If Buyer does not give FreshAir written notice of rejection within 10 business days following shipment to Buyer, the Products shall be deemed to have been accepted by Buyer. Buyer shall not be entitled to reject Products as a result of damage caused during shipment of the Products to Buyer.
5. Product Returns.
All Product returns for any reason shall be subject to express authorization of FreshAir. All returns of any kind must be accompanied by a copy of the invoice and/or purchase receipt. All returns must be made freight prepaid to the address specified by FreshAir after return authorization. No credit will be issued for unauthorized returns. Freight collect shipments will be refused. Product returns in unopened, new, saleable condition must be made within 30 days following the date of delivery to Buyer, if packaging is damaged or soiled in FreshAir’s sole judgment, a reboxing fee may be applied. Any refunds will be made in the same manner as the original payment, provided that FreshAir may elect to make any refund by means of a FreshAir corporate office check. Refunds may be issued net of shipping charges and any amounts owed to FreshAir pursuant hereto.
6. Cancellation Prior to Shipment.
If Buyer requests that an order for Products or services which has been placed with FreshAir be cancelled prior to shipment or fulfillment and FreshAir approves such request, Buyer shall be liable to FreshAir for all costs incurred by FreshAir as a result of such cancellation, including but not limited to, cancellation costs to manufacturers or suppliers and unreimbursed advances on Products, if any, together with any specifically identifiable incidental and consequential expenses.
7. Use of Products and Services; Compliance with Laws; Information.
Buyer shall use the Products and Services only for their intended use and only in accordance with the written instructions provided by FreshAir with the Products and Services as the same may be updated from time to time by posting to FreshAir’s website (the “Instructions”) and which are hereby incorporated herein by reference. Buyer may not, under any circumstances, use FreshAir’s Products for any purpose other than monitoring for cigarette and marijuana smoking with such Products being monitored by FreshAir’s cloud-based monitoring service (“Monitoring Service”). Buyer shall be solely responsible for the installation and use of the Products and Services in compliance with applicable laws, codes, rules and regulations, including, without limitation, those with respect to safety and privacy of information. All information collected by the Products and transmitted to FreshAir pursuant to the Monitoring Service shall be the sole property of FreshAir, except that Buyer shall be entitled to use the information provided in reports that FreshAir makes to Buyer pursuant to the Monitoring Service in its sole discretion (and at Buyer’s sole risk).
8. Payment for Monitoring Services; Basic Requirements.
Products shall be used only with FreshAir’s Monitoring Services. Monitoring Services must be established with FreshAir in accordance with FreshAir’s policies and procedures and will be subject to periodic fees which may be in the form of monthly or annual subscription fees and based on the number of units monitored. Establishing Monitoring Services shall require a Wi-Fi connection and Internet services that are solely the responsibility of Buyer to provide. Buyer acknowledges and agrees that FreshAir will not be responsible for the establishment or reliability of such Wi-Fi connections and Internet services and that FreshAir will not be able to provide and shall not be responsible for providing Monitoring Services at any times that such Wi-Fi connections or Internet services are interrupted for any reason.
9. Disclaimer of Express and Implied Warranties.
The Products shall be covered solely by the FreshAir limited warranty set forth below. FreshAir makes no other express or implied warranty with respect to the Products and hereby expressly disclaims and excludes implied warranties of merchantability and of fitness for a particular purpose.
10. Limited Warranty.
(i) FreshAir warrants to Buyer that the Products will be free from defects in material and workmanship for a period of ninety (90) days following the date of delivery to Buyer. Buyer must notify FreshAir in writing of any alleged defect in the Products within ten (10) days following discovery thereof but not later than ninety (90) following receipt of the Products, and return such Products within ten (10) days of such notice to FreshAir in accordance with Paragraph 5. Buyer shall provide such documentation and descriptions of the alleged defects as FreshAir shall reasonably request. If FreshAir determines that such Products are defective, FreshAir may repair or replace such defective Products or refund the purchase price for such defective Products to the Buyer in FreshAir’s sole discretion. Buyer's remedies under this warranty shall be limited to repair or replacement of the Product or component thereof which failed to conform to FreshAir's warranty or refund of the purchase price in FreshAir’s sole discretion.
(ii) The limited warranty set forth above shall not apply in the case of any Product that FreshAir determines to have been abused, modified, disassembled, used in a manner other than that originally intended, repaired by unauthorized persons, used in a manner contrary to FreshAir’s Instructions or used in a manner that violates this agreement.
(iii) No credit or exchange will be issued for product out of warranty or for non-manufacturing defects.
11. Technical Assistance and Information.
FreshAir may, at its sole discretion, furnish technical assistance, advice and information with respect to the Products and Services. It is expressly agreed that there is no obligation to provide such technical assistance, advice and information which is provided without charge at the Buyer's risk, and which is provided subject to the disclaimers set forth in Paragraph 5.
12. Representatives and Agents.
No agent, employee or other representative of FreshAir has the right to modify or expand FreshAir's standard warranty applicable to the Products or to make any representations as to the Products other than those set forth in FreshAir's Product literature and any such action, representation or warranty, if made, shall not be relied upon by Buyer and shall not form a part of these Terms and Conditions.
13. Limitation of Liability.
Neither FreshAir nor any of its affiliates, subsidiaries, successors or assigns nor any of their respective directors, managers, officers, members, employees, representatives or agents (each such person or entity other than FreshAir, a “Related Person”) shall be liable for anticipated or lost profits or for special, punitive, indirect, incidental or consequential damages. FreshAir’s and Related Persons’ liability on any claim of any kind for any loss or damage whatsoever arising out of or in connection with or resulting from the Products and the use thereof, these Terms and Conditions and the performance or breach thereof, shall, in each case, not exceed the purchase price allocable to the products or services or units thereof which gives rise to the applicable claim.
Buyer agrees to defend, indemnify, and hold harmless FreshAir and each Related Person from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with (i) the negligence or willful misconduct of Buyer or its employees or agents, (ii) any misuse or modification of the Products by Buyer or its employees or agents, (iii) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety procedures or instructions that Seller provides to Buyer or its employees or agents, (iv) the failure to store, install, operate, or maintain the Products in accordance with the Instructions, (v) any use by Buyer of information provided by FreshAir pursuant to the Monitoring Service or (vi) any use of the Products or Services in a manner which violates any law, rule or regulation applicable to Buyer.
15. Product Design and Specification Changes.
FreshAir reserves the right to make manufacturing, design, software and specification changes to its Products at any time, in its sole discretion and without notice to Buyer. No such changes shall be construed as any admission of any defect or create any obligation on the part of FreshAir to recall, update or replace any Product in its inventory or previously sold.
16. Sale Conveys Limited License to Use Products and Services; No Reverse Engineering; No Other Use of Intellectual Property; Confidentiality.
(i) Buyer understands and agrees that the Products, components thereof, related designs, related software, and the methods of manufacturing and using the Products are, in each case, protected by intellectual property rights in patents, trademarks, service marks, tradenames, copyrights, software, software source code, domain names, URLs, trade secrets, licenses, information and proprietary rights and processes owned by FreshAir (“FreshAir Intellectual Property”). FreshAir’s sale of Products and Services to Buyer does not convey any license or other ownership interest, expressly or by implication, estoppel or otherwise, under any FreshAir Intellectual Property embodied in FreshAir’s Products, Services, processes, sales literature or manufacturing operations, except that FreshAir hereby grants to Buyer, under FreshAir’s Intellectual Property, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, nonassignable license to use such FreshAir Intellectual Property solely to the limited extent necessary to use the Products and Services as intended by FreshAir, and Buyer shall make no other use of FreshAir Intellectual Property. FreshAir expressly reserves all of its rights under FreshAir Intellectual Property, and no manufacture at Buyer’s request or to Buyer’s specifications grants or conveys any ownership interest to Buyer in any FreshAir Intellectual Property. Buyer shall not attempt to reverse engineer, decompile or otherwise discover FreshAir Intellectual Property, including, without limitation, patentable, patented or non-patented inventions, trade secrets, secret processes, software, source code or other confidential information embodied or contained in FreshAir’s Products and Services. Buyer shall not defeat or circumvent, or attempt to defeat or circumvent, processes incorporated in the Products that limit the Products’ communications to those with Monitoring Services provided by FreshAir. Buyer shall not disassemble any Product or use any component of the Product (including, without limitation, the sensor component, whether shipped together with a housing or as a separate cartridge) for testing or in any other product or device not sold to Buyer by FreshAir or for any other purpose than originally intended by FreshAir.
(ii) If, in the course of Buyer’s use of the Products or Services provided by FreshAir, Buyer becomes aware of or discovers any information regarding any FreshAir Intellectual Property or other information that may reasonably be considered confidential and proprietary by FreshAir, then Buyer agrees not to use or disclose such information and to safeguard such information to the same degree that it would reasonably safeguard Buyer’s own confidential or proprietary information. Any inventions related to the Products and Services, including without limitation, ideas, innovations, improvements and know‑how developed by FreshAir, whether alone or while working together with Buyer’s personnel, in the course of providing Products and Services to Buyer shall be the sole and exclusive property of FreshAir.
(iii) You hereby expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in paragraphs 16(i) and (ii) of these Terms and Conditions will result in substantial, continuing and irreparable injury to FreshAir. Therefore, in addition to any other remedy that may be available to FreshAir, FreshAir will be entitled to injunctive or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of paragraphs 16(i) and (ii) of these Terms and Conditions.
17. Amendments, Supplements; Waiver, Termination.
These Terms and Conditions may be modified, and any breach hereunder may be waived, only by a writing signed by FreshAir. FreshAir may amend or supplement these Terms and Conditions at any time in its sole discretion and shall be deemed to have notified Buyer of such amendments or supplements by posting such amended Terms and Conditions or supplements to FreshAir’s website. In addition, FreshAir may, from time to time, issue a Product Supplement in connection with a specific Product (a “Product Supplement”) or a Service Supplement in connection with a specific Service (a “Service Supplement”) and post such supplement to FreshAir’s website and/or include a copy thereof in the packaging for the applicable Product or in the documentation provided upon commencement of the applicable Service. Such Product Supplements and Service Supplements are incorporated herein by reference and made a part of these Terms and Conditions and Buyer agrees to all of the terms and conditions set forth in any such Product Supplement or Service Supplement. FreshAir reserves the right, among other remedies, either to terminate or suspend further deliveries under these Terms and Conditions in the event Buyer fails to pay for any shipment or any amount due under these Terms and Conditions.
18. Governing Law; Jurisdiction.
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New Hampshire without reference to principles of conflicts of laws that would apply the law of any other jurisdiction. The parties agree that any and all disputes or controversies arising under, out of or in connection with these Terms and Conditions or the sale or performance of the Products or Services shall be brought exclusively in either the courts of the State of New Hampshire or in the United States District Court for the District of New Hampshire (together with applicable appellate courts). FreshAir and Buyer each hereby irrevocably consent and submit to the jurisdiction of such courts and waive any and all objections thereto. Each of the parties waives the right to a trial by jury in any legal action brought in connection herewith.
19. Force Majeure.
FreshAir shall not be liable for damages caused by any delay or default due to any causes beyond its reasonable control which prevent or delay performance including, but not limited to: strikes; war; terrorist acts; government regulations or actions; embargoes; export; shipping or remittance restrictions; accidents; fires; floods; shortages of labor, energy or raw materials, production facilities or transportation.
Buyer shall not assign its rights or its obligations under these Terms and Conditions without the prior written consent of FreshAir which may be denied in FreshAir’s sole discretion.
21. Electronic Signature.
Buyer agrees to enter into these Terms and Conditions in electronic format pursuant to the federal Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act, if enacted in Buyer’s state, or any other similar law. The Buyer consents to the entering into and the storage of this agreement in electronic form. The Buyer may withdraw this consent, but only if he or she first provides written notice to FreshAir together with Buyer’s original, manual signature on a paper copy of this agreement.
22. General Provisions.
The failure of FreshAir to enforce at any time any of the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions hereof shall in no way be construed to be a waiver of any such provisions, or the right of FreshAir thereafter to enforce any such provisions. These Terms and Conditions contain the complete and exclusive statement of the agreement between the parties in connection with the subject Products and/or Services and supersedes any previous understandings, communications, commitments, or agreements, oral or written. Buyer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of FreshAir any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of these Terms and Conditions or any contracts with FreshAir. FreshAir and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Any provision of these Terms and Conditions that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from these Terms and Conditions with respect to such party or circumstance without invalidating the remainder of these Terms and Conditions or the application of such provision to other persons or circumstances. The provisions of these Terms and Conditions which by their nature are required to survive the expiration or earlier termination of these Terms and Conditions shall survive such termination or earlier termination. The headings used in these Terms and Conditions are for convenience of reference only and shall not affect their interpretation.
FreshAir1 Product Supplement
This is a Product Supplement pursuant to Paragraph 17 of the FreshAir Sensor, LLC General Terms and Conditions of Sale and Provision of Services (the “Terms and Conditions”) and is incorporated by reference therein. All capitalized terms used, but not otherwise defined herein shall have the meaning set forth in the Terms and Conditions.
The purchase and use of the FreshAir Sensor, LLC Model FreshAir1 sensors (the “Sensors”) by the Buyer (the “Customer”) are subject to the following:
Warning: Installation should be performed only by personnel qualified and/or licensed to work on building electrical systems. Proper installation involves removing the electrical outlet faceplate resulting in risk of electrical shock.
1. The Sensors are NOT intended to be used as general smoke detectors or to function as a life safety device. They are not designed to detect non-cigarette or non-marijuana smoke. The Sensors will not detect or warn occupants of a fire or the presence of smoke from a fire.
2. The Sensors do not give any audible alarm when smoking is detected.
3. Buyer may not, under any circumstances, use the Sensors for any purpose other than monitoring for smoking using a FreshAir device which is monitored by the FreshAir cloud based monitoring service (the “Monitoring Service”).
4. The Sensors are intended to detect smoking only in the room where the sensor is located. They are NOT intended to detect smoke intrusion from other locations, such as second-hand smoke that may come through a ventilation system, open windows or doors, etc. and they may not detect such smoke.
5. The effectiveness of the Sensors will be limited by their placement and other location-specific environmental factors. Careful attention should be given to installation and location so that Sensors will not be obstructed and will not be located in places where they will not receive a proper flow of air from the room where they are installed (such as adjacent to ventilation registers or behind furniture).
6. Reliable Wi-Fi and Internet services are required for FreshAir to provide Monitoring Services. It is the Customer’s responsibility to provide these services. FreshAir will not be able to generate alerts if Sensors have inadequate Wi-Fi signals, Internet connections or at times when there are interruptions to such services.
7. The device must be connected to a continuous power supply. The power must not, at any time, be interrupted. Under no circumstances may the device be connected to an outlet with a switch. If, at any time, power is interrupted monitoring will not take place until power is restored. It is the sole responsibility of the Buyer to ensure that power is available. FreshAir bears no responsibility for periods when power in interrupted.
7. An App or web portal is required for installation of the Sensors and connection to Monitoring Services. Customer is responsible to provide adequate computer and networking hardware and other equipment to connect and operate the sensors and Monitoring Services.
8. Reports and/or Alerts that are generated by the Monitoring Services do not differentiate between marijuana and nicotine smoking.
9. A subscription shall be required for Monitoring Services in accordance with FreshAir’s policies and procedures and such subscriptions shall be subject to periodic fees which may include monthly or annual fees and fees based on the number of Sensors in use.
10. All data collected by and communicated to FreshAir via Monitoring Services shall be the sole property of FreshAir and may be used by FreshAir as it determines in its sole discretion, except that the Customer shall be entitled to use the information provided in alerts or reports from FreshAir in the Customer’s sole discretion and at the Customer’s sole risk.
11. Customer shall also take the following into consideration in the installation and use of the Sensors:
a. Sensors should be placed close to where smoking is likely to occur (or otherwise in a central location.
b. The electrical outlet faceplate should be removed from the electrical outlet before installation. This should be performed only by personnel qualified and/or licensed to work on building electrical systems.
c. The Sensor device should not be disassembled (do not remove the front cover from the backing).
d. The Sensors should be installed and used indoors in dry, climate controlled locations only. The Sensors are not designed, certified or tested for outdoor use or for use in wet locations.
e. The Sensors should not be installed or used in locations where they may be exposed to temperatures below 0 C/32 F or above 40 C / 104 F.
f. The Sensors should not be installed using extension cords.
g. The Sensors must be installed in a three-prong North American Type B outlet with a functional and properly installed grounding conductor. Do not replace an older two-pronged outlet with a three-pronged outlet without properly connecting a ground conductor. Do not defeat the outlet ground by cutting the grounding pin from the Sensor.
h. The Sensors are not designed to be used “upside-down” with the grounding pin above the slotted pins on the outlet. If the grounding pin on the outlet is above the slotted pins, the outlet must be removed and rotated so that the grounding pin is down. This should be performed only by personnel qualified and/or licensed to work on building electrical systems.
i. The Sensors are designed and must be used only with alternating current at nominal 120V and allow a range of 114 V to 126 V (RMS) (−5% to +5%).
j. The tamper proof screw used to attach the Sensor to the outlet requires a screwdriver with interchangeable heads.
12. Customer should take the following into consideration in the care and maintenance of the Sensors:
a. Dust accumulation over time is normal and may affect the sensitivity of the Sensors. Vents on the Sensors should be cleaned regularly. Do not insert any hard object or metal object into the vents on the Sensor. Electrical shock or damage to the Sensor could occur. FreshAir recommends carefully vacuuming the vents with a non-metallic hose-type vacuum to remove dust.
b. Sensor cartridges may become less sensitive after repeated exposure to the target chemical and it is recommended that they be replaced after 3 smoking incidents.
c. Sensors will not operate without the sensor cartridge properly installed.