TERMS AND CONDITIONS OF SALE AND EQUIPMENT LIMITED WARRANTY

The following Terms and Conditions shall govern the purchase and sale of all products (the “Products” or a “Product”) sold by SmartD Technologies Inc. (“SmartD”) to the purchaser stipulated on the invoice or price quotation (the “Purchaser”). Any additional, contrary or different terms contained in any purchase order or any other request or communication by Purchaser  or any prior representations including any quotation, memorandum of understanding, discussions, negotiations and any other attempt to modify, supersede, supplement or otherwise alter these Terms and Conditions of Sale, are deemed rejected by SmartD and will not modify these Terms and Conditions of Sale or be binding on SmartD unless such terms have been fully approved in a signed writing by both Parties. By placing an order, the Purchaser is deemed to have accepted these Terms and Conditions of Sale.

1.ORDERING AND SHIPPING

Placement of Orders.

Orders for Products shall be placed in writing by mail or by e-mail in PDF format to SmartD. Each order shall specify: (i) the quantity, model, and price of each Product ordered; (ii) the date requested for, and the address of the place of, delivery; (iii) the name, address, telephone number and e-mail address of any carrier or freight forwarder specifically requested by Purchaser; (iv) address telephone number and e-mail address of Purchaser; as well as (v) the ship to name, address telephone number and e-mail address of the end user, if applicable.

Confirmation of Orders.

Upon receipt of an order, SmartD shall respond in writing by stating: (i) any proposed changes in the Products or quantities of the Products; and (ii) the date on or before which SmartD expects to be able to make delivery to the carrier or freight forwarder. An order shall be binding on SmartD only upon the issuance by SmartD of written confirmation of such order. All delivery dates are best estimates only and are not binding on SmartD.

Cancellation of Orders.

Cancellation of any order between seven (7) and thirty (30) days prior to confirmed ship date shall be subject to a cancellation charge of forty percent (40%) of the cancelled portion of the order. Orders may not be cancelled within seven (7) days prior to, on, or after the confirmed ship date. Orders of non-standard Products or Product configurations may not be cancelled. The cancellation charge is not imposed as a penalty, but as liquidated damages.

Changes in Delivery Schedule.

Change in delivery date by Purchaser, without charge, must be made in writing and received at least fifteen (15) days prior to the scheduled delivery date. Any requested delay or series of delays totalling ninety (90) days or more shall be treated as a cancellation and shall be subject to the forty percent (40%) cancellation charge on the portion of the order which is so delayed.

Shipping and Delivery.

Delivery is EX WORKS SmartD’s Montreal facility (the “Delivery Point“) (Incoterms 2020. All risk of loss or damage with respect to the Products shall pass to Purchaser upon delivery at the Delivery Point to the carrier or freight forwarder. All freight, insurance and other shipping charges and expenses from the Delivery Point, as well as any special packing expenses requested by Purchaser, shall be borne by Purchaser. SmartD shall use good faith efforts to comply with Purchaser’s instructions regarding shipping and choice of carrier. Purchaser must notify SmartD within ten (10) days of receipt of Products of any discrepancies in the shipment of such Products or of any reason for rejection of such Products, failing which Purchaser shall be deemed to have accepted the Products.

2.PRICING AND PAYMENT

Quotations and Prices.

Prices quoted by SmartD are firm for thirty (30) days from quotation date.

Taxes and Other Charges.

All prices are exclusive of all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind as well as all custom duties, shipping, handling, insurance, brokerage, and other related charges, all of which are to be paid by Purchaser, provided that Purchaser shall not be responsible for any taxes imposed on, or with respect to, SmartD’s income, revenues, gross receipts, personnel or real or personal property or other assets. Orders exempt from sales or other taxes must be so marked and Purchaser must supply satisfactory proof of such tax exemption.

Payment.

Except where SmartD has granted, at its entire discretion, payment terms to Purchaser, all orders shall be prepaid. All payments shall be made to SmartD at its principal place of business or pursuant to SmartD’s written instructions.

Late Charge.

Invoices unpaid in full when due shall bear a late payment interest charge of the lower of 18% per year (one and one half percent (1½ %) per month) or the maximum percentage allowed by law for each month or portion thereof of the amount past due. In addition, SmartD may cancel or delay shipment of the Products at its sole discretion.

No set-off.

Purchaser will not withhold, offset, recoup or debit any amounts owed (or to become due and owing) to SmartD against any other amount owed (or to become due and owing) to it by SmartD, whether relating to SmartD’s breach or non-performance of these Terms and Conditions of Sale or any other agreement between Purchaser and SmartD, or otherwise.

Purchaser Insolvency.

If, at any time, Purchaser: i)  becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; ii) files an application for voluntary bankruptcy; iii) has a bankruptcy order made against it or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; iv) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts; v) makes or seeks to make a general assignment for the benefit of its creditors; or vi) applies for or has an interim receiver, receiver, receiver-manager, trustee, monitor, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business (each an “Insolvency Event”)  SmartD may without liability or penalty, take one or more of the following actions:

 

  1. modify any payment terms granted by SmartD for outstanding and future purchases, including requiring Purchaser to pay for Products on a cash in advance or cash on delivery basis;
  2. cancel any previously accepted orders;
  3. delay or withhold any further shipment of Products to Purchaser;
  4. stop delivery of any Products in transit and cause such Products in transit to be returned to SmartD;
  5. accelerate the due date of all amounts owing by Purchaser to SmartD.
No action taken by SmartD (nor any failure of SmartD to act) constitutes a waiver by SmartD of any of its rights and remedies under these Terms and Conditions of Sale, including its right to enforce Purchaser’s obligation to make payments as required hereunder.
 

Retained Rights.

Until payment in full of the Product has been received by SmartD, SmartD shall retain ownership of the Products, and Purchaser hereby grants to SmartD, a security interest in the Products shipped or delivered to Purchaser. Purchaser shall promptly execute any documents necessary to perfect and protect such security interest on SmartD’s behalf.

3.LIMITED EQUIPMENT WARRANTY

The limited warranty detailed in the section below (the “Limited Warranty“) is the exclusive warranty applicable to the Products. all other warranties, conditions, representations or guarantees, including any warranties, conditions, representations or guarantees PROVIDED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE ARE EXPRESSLY DISCLAIMED.

4.INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE LICENSE

SmartD grants the Purchaser and the end-user a limited, non-exclusive, irrevocable, non sublicensable, royalty-free license to use the software embedded in the Product (the “Software”) and any associated documentation solely for the purpose of using the Product in accordance with these Terms and Conditions of Sale and the instructions of SmartD. Any other use of the Software is strictly forbidden, including, but not limited to, copying, renting, reverse engineering, modifying, decompiling or selling. Except as expressly provided for herein, SmartD retains all intellectual property rights, including without limitations, patents, trademarks, copyrights, industrial design rights, designs, know how or trade secrets (collectively, “SmartD IP Rights”) used to create, embodied in, used in, and otherwise relating to the Products and any of their component parts and Purchaser expressly acknowledges and agrees that such SmartD IP Rights are the sole and exclusive property of SmartD or its licensors. If Purchaser acquires any SmartD IP Rights in or relating to any Products by operation of law, or otherwise, such rights are deemed assigned, and Purchaser hereby irrevocably assigns, to SmartD or its licensors, as the case may be, without further action by either party. Purchaser acknowledges and agrees that any goodwill derived from the use by Purchaser of SmartD IP Rights enure to the benefit of SmartD or its licensors, as the case may be. Purchaser may not sell the Product with software that replaces the Software provided by SmartD. Purchaser may not sell the Software or another constituent part of the Product as a “standalone” product, separate and apart from the Product received from SmartD. Purchaser may not knowingly sell, give or otherwise make available the Products and any confidential information to a competitor of SmartD.

5.NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, AGRAVATED, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE PURCHASE AND SALE OF THE PRODUCTS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

6.MAXIMUM LIABILITY FOR DAMAGES

IN NO EVENT SHALL SMARTD’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OF SALE OR THE PURCHASE OR SALE OF PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE DOLLAR VALUE OF THE ORDER RELATING TO SUCH LIABILITY.

7.NOTICES

All notices to SmartD shall be deemed given when sent by e-mail with subsequent confirmation, or mailed by certified mail, return receipt, postage prepaid, or courier service or equivalent to:

SmartD Technologies Inc.
210-425, GUY STREET, MONTREAL, QUEBEC, CANADA H3J 1S9,
TEL. (866) 776-2783
info@smartd.tech

8.CONFIDENTIALITY

All non-public, confidential or proprietary information of SmartD, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by SmartD to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms and Conditions of Sale or the Products (“Confidential Information”) is confidential, solely for the use of performing Purchaser’s obligations pursuant to these Terms and Conditions of Sale and may not be disclosed or copied unless authorized in advance by SmartD in writing. Upon SmartD’s request, Purchaser shall promptly return all documents and other materials received from SmartD. SmartD shall be entitled to injunctive relief for any violation of this Section 9. This Section 9 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

9.FORCE MAJEURE

No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms and Conditions of Sale, for any failure or delay in fulfilling or performing any term of this these Terms and Conditions of Sale (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, fire, earthquake, tsunami, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) strikes, labour stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (j) other similar events beyond the control of the Impacted Party.

10.GENERAL PROVISIONS

Severability. If any part or provision of these Terms and Conditions of Sale shall be found to be illegal or unenforceable, these Terms and Conditions of Sale shall remain in full force and effect and such part or provision shall be deemed stricken. Waiver. No waiver shall be implied from SmartD’s conduct or failure to enforce its rights hereunder. Assignment. Purchaser may not delegate its duties or assign its rights under these Terms and Conditions of Sale without the prior written consent of SmartD, and any purported delegation or assignment in violation of the foregoing shall be void and without force or effect. Successors and Assigns. These Terms and Conditions of Sale shall be binding upon and inure to the benefit of SmartD and Purchaser and their respective successors and permitted assigns. Applicable law and Venue. These Terms and Conditions of Sale shall be governed by, construed and interpreted in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Quebec and elect domicile in the City of Montreal with respect to any matter relating to the execution or construction of these Terms and Conditions of Sale or the exercise of any right or the enforcement of any obligation arising hereunder. French Language. Purchaser hereby confirms that prior to its acceptance of this these Terms and Conditions of Sale it received the French version of these Terms and Conditions of Sale, and expressly requested, and hereby expressly requests, to have these Terms and Conditions of Sale and all documents relating hereto be in English. Le « Purchaser » confirme avoir reçu la version française des présent termes et conditions de vente avant d’avoir accepté la version anglaise, et a expressément demandé, et demande expressément par la présente, à ce que les présent termes et conditions de vente et tous les documents y afférents soient en anglais.

LIMITED WARRANTY

 

Limited Warranty. SmartD Technologies Inc. (“SmartD”) warrants that for a period of eighteen (18) months (except for plastic components (e.g. plastic cover) which are warranted for thirty (30) days only) from the date of shipment by SmartD (the “Warranty Period”) the SmartD products purchased directly from it or from an authorized reseller of SmartD (the “Product”) will conform to its respective specifications published on SmartD’s website in effect on the date of purchase and be free from defects in manufacturing or workmanship.  This limited warranty is only available to the original purchaser (the “Purchaser”) of the Product and is non-transferable.

Warranty Limitations. This Limited Warranty does not apply where the Product, including the software embedded in it:
has been subject to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper handling, subject to improper power supply, such as low voltage, defective wiring or inadequate fuse or use contrary to any instructions issued by SmartD;  was damaged by a power failure, during transit, when moving or installing, by fire, by water, other acts which are not attributable to SmartD; or has been reconstructed, repaired or altered by any person other than SmartD or its authorized representative.

Exclusive Remedy. Purchaser’s sole and exclusive remedy and SmartD’s sole and exclusive obligation with regards to any claims that the Product breaches the limited warranty described herein as such shall be determined by SmartD at its exclusive discretion (thereafter “Defective Product”) shall be: at SmartD’s option, to: (i) repair or replace the Defective Product; or (ii) reimburse Purchaser the full purchase price paid by Purchaser for the Defective Product.  Provided in both cases that (i) Purchaser provides SmartD with sufficient details to enable SmartD to recreate and diagnose the failure of the Product to function as warranted; (ii) as may be requested by SmartD, the Product is either shipped to SmartD or made available to SmartD for inspection; and (iii) the breach of the limited warranty is reported to SmartD within the Warranty Period.  In no event shall SmartD be responsible for installation, dismantling or reinstallation costs or charges. The preceding sets forth Purchaser’s sole remedy and SmartD’s entire liability for any breach of SmartD’s limited warranty.

Additional Terms of the Limited Warranty. Parts, accessories or components that are new or reconditioned to perform as new, shall be furnished by SmartD on an exchange basis, and the exchanged parts shall become SmartD’s property. The Warranty Period shall not be extended due to suspension of the use of the Product during repair, replacement, examination, or any other reasons. Purchaser shall bear all costs associated with transportation of returned Product, parts, accessories and components, and will bear all risk of loss or damage while in transit. In the event no breach of the limited warranty is discovered by SmartD but the returned Product nonetheless requires repair or replacement, SmartD shall, upon approval by Purchaser, repair or replace the Product, and return same to Purchaser at Purchaser’s expense and risk. Purchaser is responsible for the installation of any replacement Products provided pursuant to this Limited Warranty. SmartD reserves its right to charge a fee for any service calls resulting in customer education for Products that are not Defective Products.

Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, all other warranties, conditions, representations or guarantees, including any warranties, conditions, representations or guarantees under any Sale of Goods Act or like legislation or statue are hereby expressly excluded TO THE FULLEST EXTENT permitted by law.    SMARTD MAKES NO REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT, INCLUDING WITHOUT LIMITATIONS ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; d) THA THE PRODUCTS OR SOFTWARE WILL BE ERROR FREE;   WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. PURCHASER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, CONDITION OR WARRANTY MADE BY SMARTD, OR ANY OTHER PERSON ON SMARTD’S BEHALF. WITHOUT LIMITING THE ABOVE, the Product is not designed for any activity requiring fail-safe performance in which the failure of the Product could lead to death, serious personal injury or severe physical or environmental damage, including but not limited to medical applications, emergency response systems, air traffic control systems and weapons systems.

IN NO EVENT SHALL SMARTD BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, AGRAVATED, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE PURCHASE OF THE PRODUCTS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  IN NO EVENT SHALL SMARTD’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE DOLLAR VALUE OF THE PRODUCT RELATED TO SUCH CLAIM.

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