1. Acceptance of Terms and Conditions
Client’s acceptance of these Terms shall be indicated by any of the following, whichever first occurs: (a) Client’s submission of a purchase order to SmartOS in connection with a Sale; (b) Client’s written acknowledgment of these Terms; (c) Client’s acceptance of any shipment of any Product in connection with a Sale; or (d) any other act or expression of acceptance by Client. All terms, conditions or proposals submitted by Client before or after these Terms (whether oral or in writing) that are inconsistent with or in addition to these Terms are objected to and are hereby rejected by SmartOS. SmartOS’s silence or failure to respond to any such term, condition or proposal shall not be deemed to be SmartOS’s acceptance or approval thereof.
Unless otherwise agreed in writing by SmartOS, delivery of EntryReady Products in connection with a Sale shall be made in accordance with SmartOS’s shipping policy in effect on the date of shipment. For all domestic transactions, unless otherwise stated in the SmartOS Proposal and Sales Order Form, title to all EntryReady Products and all risk of loss or damage with respect to the EntryReady Products shall pass to Client upon delivery by SmartOS to the carrier or Client’s representative at SmartOS’s logistics center.
3. Software License
SmartOS grants to Client a non-exclusive, enterprise-wide, perpetual license to use the EntryReady Connect Software (SmartOS’s proprietary system that is further described in the SmartOS Proposal and Sales Order Form) in accordance with these Terms. SmartOS shall retain any and all ownership or other right, title, and interest in and to the EntryReady Connect Software. Client agrees not to use, disclose, or reproduce the EntryReady Connect Software except as described in these Terms for purposes of Client’s internal use during the Term. Client acknowledges that neither SmartOS nor these Terms grants Client any right, title or interest in the Software except the license expressly set forth in this Section 3. Neither Client or any of its Affiliates shall, or shall assist others to, (i) disassemble, decompile, reverse engineer, or otherwise attempt to recreate the EntryReady Connect Software, (ii) modify, enhance, or create derivative works based on the EntryReady Connect Software, (iii) rent, lease, sublicense, grant a security interest in, or otherwise assign or transfer rights to the EntryReady Connect Software unless otherwise expressly provided in these Terms, or (iv) remove any proprietary notice or label from the EntryReady Connect Software.
4. Installation Services
SmartOS shall deliver or make the EntryReady Connect Software available to the Client by the date(s) set forth in the SmartOS Proposal and Sales Order or as otherwise agreed to in writing by the parties. SmartOS shall install, the EntryReady Connect Software and the EntryReady Hardware at the Client’s location in accordance with the SmartOS Proposal and Sales Order, to enable the EntryReady Connect Software to be used by Client in conformance with the applicable EntryReady Connect Software specifications and license. If provided in the SmartOS Proposal and Sales Order, SmartOS shall provide to Client training, support, and assistance regarding the use and operation of the EntryReady Connect Software and the EntryReady Hardware
5. Price and Payment
Client shall be responsible for all applicable federal, state, municipal, and other government taxes (such as sales and similar taxes), as well as export, import and customs duties, license fees, and any other similar charges, however, designated or levied on a Sale, the delivery of any Product to the Client’s location, or the Services, or measured by the purchase price paid for the EntryReady Connect Software, the EntryReady Hardware or the Services. In addition to the Product prices set forth on the SmartOS Proposal and Sales Order Form, SmartOS includes applicable taxes, duties, fees, and charges for payment to SmartOS by Client. Such inclusion shall in no way vary or limit Client’s payment responsibility for all such taxes, duties, fees, and charges. Client is also responsible for paying SmartOS for all shipping charges that are included on the SmartOS Proposal and Sales Order Form. Tax exemption certificates must be presented by Client to SmartOS before shipment of any Products in order for such exemption to be honored by SmartOS.
6. Payment Terms
Unless otherwise specified in a written agreement between Client and SmartOS, the payment terms are COD. SmartOS, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid amounts due under the Proposal and Sales Order Form or any invoices shall bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed by law, whichever is less), commencing upon the date payment is due. Client’s failure to make timely payment may, at the discretion of SmartOS, result in the commencement of proceedings for collection, revocation of credit, stoppage of shipment, cessation of services, delay or cessation of future deliveries of any Products or Services, repossession of unpaid delivered Products and termination of any one or more agreements in connection with a Sale. Notwithstanding any “net” payment provisions specified on the SmartOS Proposal and Sales Order Form or any invoice, SmartOS shall have no continuing obligation to deliver any Products or Services on credit, and any credit approval may be withdrawn by SmartOS at any time and without prior notice to Client. SmartOS retains (and Client grants to SmartOS by submitting a purchase order) a security interest in the EntryReady Connect Software and EntryReady Hardware to secure payment in full therefor and compliance with these Terms. Upon notice from SmartOS, Client agrees to execute and deliver to SmartOS any additional documents necessary to perfect such security interest. If SmartOS places any outstanding amounts due under the SmartOS Proposal and Sales Order Form or any invoice with an attorney or collection agency for collection, with or without judicial proceedings, or for enforcing SmartOS’s security interest in the Products, Client agrees to pay any and all costs associated with such collection effort, including, without limitation, court costs and expenses and attorney’s and collection agency’s fees and costs, incurred by SmartOS including, without limitation, collection, bankruptcy and or other creditor’s rights proceedings. If a Sale requires Products to be shipped or Services to be delivered (or both) outside of the United States, Client acknowledges and agrees that the amount due SmartOS shall be paid in United States Dollars. Any payment by Client in local currency or the receipt by SmartOS of local currency as a consequence of any collection or enforcement actions against Client will be deemed an authorization for SmartOS to use such local currency to purchase United States Dollars. Any deficiency or conversion cost as a result of the conversion of such local currency into United States Dollars shall be the responsibility of Client, and Client shall immediately pay the amount of any such deficiency to SmartOS upon demand.
SmartOS warrants to Client that the EntryReady Hardware shall be free from any Defect (defined below) for a period of 36 months after the date of delivery of the EntryReady Hardware to Client (the “Warranty Period”). A “Defect” is any failure in the materials or workmanship of the EntryReady Hardware that causes it not to comply with the specifications and characteristics described in the price list contained in the Proposal and Sales Order Form. SmartOS warrants the EntryReady Hardware in accordance with the terms set forth below. During the Warranty Period, upon written request of the Client, SmartOS shall replace or repair at its own cost, the EntryReady Hardware or of any of its parts or components that SmartOS determines to have a Defect. The conditions to this warranty are as follows:
- a) This warranty shall be effective only if SmartOS receives notice of such claim for Defects in materials or workmanship during the Warranty Period.
- b) SmartOS’s liability under this warranty is expressly limited to a claim for repair or replacement of the EntryReady Hardware.
- c) SmartOS reserves the right to confirm whether Client has complied with the conditions of this warranty.
- d) SmartOS shall repair or replace the EntryReady Hardware or issue a credit, as SmartOS decides in its sole discretion.
- e) THIS WARRANTY DOES NOT APPLY TO AND IS VOID IN THE CASE OF DEFECTS OR DAMAGE RESULTING FROM ACCIDENTS, DISASTER, NEGLECT, MISUSE, IMPROPER INSTALLATION (OTHER THAN INSTALLATION BY SMARTOS), IMPROPER OR UNAUTHORIZED SERVICE OR MAINTENANCE, UNAUTHORIZED REPLACEMENT PARTS OR ATTACHMENTS; OR DYSFUNCTION OR MALFUNCTION OF, OR CAUSED BY, ANY OTHER PRODUCT OR DEVICE.
- f) Misuse includes any use of the EntryReady Hardware in other than its intended application, including the use of EntryReady Hardware with any software other than EntryReady Connect Software and other approved SmartOS Software and accessories.
- g) This warranty does not cover, and SmartOS assumes no responsibility for, any software, equipment or devices used in conjunction with the EntryReady Hardware, other than EntryReady Connect Software and other approved SmartOS Software and accessories.
- h) This warranty does not apply to expendable parts that routinely require replacement in less than a year.
- i) SMARTOS DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY WRITTEN OR IMPLIED WARRANTY OF THE ENTRYREADY HARDWARE. UNDER NO CIRCUMSTANCES WILL SMARTOS BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
- j) This warranty shall not be effective, and SmartOS shall not be liable, for any Defect or malfunction of the EntryReady Hardware in any of the following situations:
- i. If caused by the Client or by any third person in connection with the storage, handling, transportation, installation, or maintenance of the EntryReady Hardware or in connection with any other activity performed after the delivery of the EntryReady Hardware or installation, if the installation is a Service performed by SmartOS;
- ii. If caused by normal wear and tear, or as a consequence of dust, moisture, or misuse of the EntryReady Hardware, or caused intentionally or by vandalism, or by a loss of power supply or by Force Majeure (as defined in Section 10);
- iii. If arising out of the use of spare parts or materials that have not been expressly approved by SmartOS or when the elements or components of the Products have suffered any type of manipulation or repair by persons not expressly authorized in writing to do so by SmartOS;
- iv. When the use or conditions affecting the operation of the Products are unusual or not reasonably foreseeable.
- k) Client shall notify to SmartOS of the existence of any Defects immediately after their appearance and in no case later than five (5) calendar days after the discovery of the Defects, in writing and by any means with acknowledgment of receipt. SmartOS shall have no obligation to honor this warranty with respect to untimely notifications.
- l) SmartOS shall be permitted to request any information it deems necessary in order to verify that this warranty applies, and the Client must provide SmartOS at no cost all information necessary to enable SmartOS to verify the nature and cause of the Defect claimed and to carry out its warranty obligations.
- m) Client shall give SmartOS adequate time and opportunity to remedy the Defect. For this purpose, the Client shall grant SmartOS working access to the non-conforming EntryReady Hardware and EntryReady Connect Software, including disassembly and reassembly without cost to SmartOS.
- n) If SmartOS must access the place where the EntryReady Hardware is installed, SmartOS may in its sole discretion use employees or independent contractors for such repair or replacement.
- o) The substitution or repair of any Product shall not interrupt or extend the Warranty Period.
- p) SmartOS’s total and maximum responsibility shall be limited to repair or replace EntryReady Hardware with Defects, or if repair or replacement is not possible, to reimbursement of the purchase price of the EntryReady Hardware with Defects. Any other costs or damage shall be excluded from SmartOS’s liability. SmartOS shall not be responsible for any other loss or damage suffered by the Client or any third party, of any nature, direct or indirect, as a consequence of any Defect of any Product or its use. SmartOS shall not be responsible or liable for any damage or loss resulting from the operation or performance of any other product or any systems in which EntryReady Hardware or EntryReady Connect Software is incorporated.
- SmartOS warrants to Client that the EntryReady Connect Software will perform substantially in accordance with the documentation provided and as described in the Proposal and Sales Order Form when used in accordance with SmartOS’s instructions on the server on which it is installed by SmartOS for a period of 12 months after the date of delivery of the EntryReady Hardware and EntryReady Connect Software to Client (the “Software Warranty Period”). SmartOS shall take reasonable steps to correct errors reflecting significant deviations from the functional specifications of the EntryReady Connect Software that are reported to SmartOS during the Software Warranty Period, but because not all errors in software can or need to be corrected in order for the EntryReady Connect Software to serve its function, SmartOS does not warrant that all problems with software will be corrected. SmartOS does not warrant uninterrupted or error-free operation of EntryReady Connect Software or EntryReady Hardware. The conditions to the warranty provided with respect to the EntryReady Hardware also apply to the EntryReady Connect Software, subject to the Software Warranty Period.
8. Product Returns; Disclaimer
Any return of Products by Client shall be governed by SmartOS’s warranty terms set forth in Section 7 above. SmartOS reserves the right to modify or eliminate the warranty at any time. Other than the warranty set forth in Section 7 above, SmartOS makes no representations or warranties of any kind with respect to the Products or the Services. SMARTOS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OR FITNESS FOR A PARTICULAR PURPOSE. SMARTOS WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE ARISING FROM A SALE OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES. The right to return Products that have a Defect, as described in the warranty in Section 7, shall constitute SmartOS’s sole liability and Client’s exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon principles of contract, tort or otherwise. If SmartOS issues a return authorization to Client allowing Client to return a Product to SmartOS, Client will deliver the Product to SmartOS’s address in the United States at its cost and expense, if so required by SmartOS, and Client shall be responsible for all applicable federal, state, municipal and other government taxes (such as sales and similar taxes) as well as export, import or customs duties, license fees and similar charges, however, designated or levied, on any replacement Products to be shipped by SmartOS to Client. In addition to the replacement Products prices set forth on the SmartOS Proposal and Sales Order Form, SmartOS includes applicable taxes, duties, fees, and charges for payment to SmartOS by Client. Such inclusion shall in no way vary or limit Client’s payment responsibility for all such taxes, duties, fees, and charges. Client is also responsible for the payment to SmartOS for all shipping charges that are included on the SmartOS invoice for replacement Products to be shipped by SmartOS to Client.
9. Limitation of Liability
SMARTOS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH A SALE OF ANY PRODUCTS OR SERVICES TO CLIENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS OR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OR ANY SUMS PAID BY CLIENT TO THIRD PARTIES EVEN IF SMARTOS IS INFORMED OR IS OTHERWISE AWARE OR SHOULD BE AWARE OF THEIR LIKELIHOOD, POSSIBILITY OR PROBABILITY, WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, TORT OR OTHERWISE.
10. Force Majeure
SmartOS shall not be liable for any delay or failure to perform any Sale due to events beyond its control including, without limitation, natural disasters, power outages, accidents, labor strikes or shortages, and governmental laws and regulations. If due to any such event, SmartOS is unable to ship all the Products or deliver all the Services to Client and other customers of SmartOS in connection with a Sale, SmartOS may allocate the available supply of products and services among Client and SmartOS’s other customers as SmartOS shall deem reasonable.
11. Client’s Operational Responsibilities
Client acknowledges and agrees that:
- Client has independently determined that the EntryReady™ System ordered under these Terms meets Client’s requirements.
- Client shall ensure that Client’s personnel, employees, and any other persons authorized to use the EntryReady™ System (collectively, “Users”) are always educated and trained in the proper use, operation and care of the EntryReady™ System, and that the EntryReady™ System is always used in accordance with applicable SmartOS manuals and instructions.
- Client shall provide adequate warnings when necessary or desirable to prevent harm to people (including death) or property.
- Except as otherwise specifically set forth in the SmartOS Proposal and Sales Order Form: SmartOS will not be responsible for retaining any of Client’s data after installation of the EntryReady™ System; Client’s data may be deleted promptly after installation of the EntryReady™ System is completed; SmartOS will not restore, provide on any storage media or send out any data pertaining to use of the EntryReady™ System; and it is Client’s responsibility to back-up and migrate Client’s data before installation of the EntryReady™ System or any other action that can lead to deletion of any of Client’s data from the EntryReady™ System.
- Client shall use the EntryReady™ System solely for business or commercial purposes. Client warrants that the EntryReady™ System shall at all times be used and operated in compliance with the laws of the jurisdictions in which such systems may be operated. Client shall be responsible for all unauthorized use of the EntryReady™ System by any person or entity, except as otherwise expressly set forth in these Terms.
12. Suspension of Service
SmartOS may, at its option, suspend SmartOS Services (as defined in the SmartOS Proposal and Sales Order Form) to Client without liability if: (i) we reasonably believe that the SmartOS Services are being used in violation of these Terms or applicable law; (ii) Client fails to cooperate with any reasonable investigation by us of any suspected violation; (iii) there is a denial of service attack on Client’s servers or other event for which we reasonably believe that the suspension of SmartOS Services is necessary to protect our network or others; or (iv) we are requested to do so by a law enforcement or government agency. Information on our servers will be unavailable during a suspension of the SmartOS Services. We shall give Client written notice at least 24 hours in advance of a suspension under this Section 12, unless a law enforcement or government agency directs otherwise, or suspension on shorter or contemporaneous notice is necessary to protect us or others from an imminent and significant risk. We shall not suspend the SmartOS Services if the grounds for the suspension are cured during the notice period. We shall promptly reinstate suspended SmartOS Services when the reasons for the suspension of Services are cured.
13. Optional Services and Products
EntryReady Products may include the EntryReady™ by SmartOS Mobile Key or use of the SmartOS cloud platform to manage the SmartOS Mobile Key (or both) (collectively, as to either or both, “Mobile/Cloud Services.” The terms set forth in this Section 13 shall apply to Mobile/Cloud Services offered by SmartOS:
- You shall be responsible for granting your front desk staff and your clients (collectively, “Authorized Users”) with access to the Mobile/Cloud Services functions that you determine to grant to Authorized Users. You are responsible for training Authorized Users in the proper use of Mobile/Cloud Services and for all transactions and instructions made by those granted access to Mobile/Cloud Services. SmartOS may from time to time require that your Authorized Users download updates mand/or replacements of the Mobile/Cloud Services.
- Each Authorized User of Mobile/Cloud Services must accept the terms and conditions of use required by SmartOS (“User Terms”). The User Terms may be presented to each Authorized User when they first log into the applicable Mobile/Cloud Services. SmartOS may re-present the same or different User Terms for reaffirmation or acceptance from time to time in its sole discretion.
- You hereby accept the User Terms as in effect from time to time. You warrant that all of your Authorized Users have accepted the User Terms and that you shall be responsible for all acts and omissions of Authorized Users and all violations of User Terms committed by your Authorized Users or those who have accessed the Mobile/Cloud Services through your account or the account of any of your Authorized Users, regardless of whether such acts and omissions of Authorized Users were authorized or directed by you. You are deemed to be a “User” under the User Terms agreed to by each Authorized User. You are also responsible for all transactions made through the Mobile/Cloud Services by using access credentials that were issued to any Authorized User, even if the transaction is not made by an Authorized User. You are solely responsible for maintaining the secrecy and security of all access credentials and the use of all mobile devices.
- You shall notify us immediately if an Authorized User is no longer an Authorized User. You specifically acknowledge and authorize us to send disclosures and notices by electronic communication to Authorized Users, and your obligation to update us with any changes in each Authorized User’s electronic address.
- You hereby agree that the following is a commercially reasonable security procedure for accessing your Mobile/Cloud Services and verifying the authenticity and authority of instructions: You may accept, rely upon and execute instructions received through Mobile/Cloud Services from a person that has logged in using the access credentials of an Authorized User. You represent that this foregoing security procedure is commercially reasonable for your particular needs, considering the size, type and frequency of use of your Authorized Users. Any instruction received by SmartOS in good faith and in compliance with the foregoing security procedures shall for all purposes be effective as your authorized instruction, even if you did not in fact authorize or send it.
- If you no longer want a person to be enrolled in Mobile/Cloud Services as an Authorized User, you are responsible for un-enrolling that person from Mobile/Cloud Services. Please note that if you un-enroll a person as an Authorized User from Mobile/Cloud Services, they will be automatically un-enrolled as an Authorized User from Mobile/Cloud Services AT ONCE if you have any information that the security of any access credentials might be compromised. You acknowledge that Mobile/Cloud Services involve electronic transmission of information across wireless networks that are not under control of the SmartOS. You agree that SmartOS is not responsible for the privacy, security, accuracy or availability of your wireless data transmissions. By choosing to use the Mobile/Cloud Services, you assume all risk that an item may be intercepted, misdirected, corrupted or lost. SmartOS strongly recommends use of all dual authentication and control features that are made available through the Mobile/Cloud Services.
- You and your Authorized Users should check with their mobile communication services providers regarding any charges (e.g., connection and data charges) that they may assess. SmartOS is not responsible for such third-party charges that you or Authorized Users may incur.
- SmartOS does not guarantee functionality or availability of Mobile/Cloud Services on any specific mobile device, on any communication network, in any geographic region, or at any time. In no event, regardless of cause, shall SmartOS be liable for your or your Authorized User’s inability to access the Mobile/Cloud Services or to execute any mobile transaction. You agree to use Mobile/Cloud Services only from within the United States of America. The Mobile/Cloud Services do not support all types of mobile devices. The Mobile/Cloud Services are available only to SmartOS clients that subscribe for such Products and Services.
- You acknowledge that, as part of the Mobile/Cloud Services, SmartOS may in its sole discretion elect to monitor the geographic location of an Authorized User who is conducting a transaction using Mobile/Cloud Services.
- IN ADDITION TO THE OTHER INDEMNIFICATION REQUIREMENTS SET FORTH IN THIS AGREEMENT, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US AND OUR AFFILIATED COMPANIES HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, PROCEEDINGS, LIABILITIES, LOSSES, COSTS, ATTORNEY FEES, AND CLAIMS (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS) THAT RESULT FROM OR ARISE IN CONNECTION WITH: (A) OUR PROCESSING ANY TRANSACTION IN ACCORDANCE WITH THIS AGREEMENT OR YOUR INSTRUCTIONS; (B) YOUR ACTIONS OR OMISSIONS, INCLUDING YOUR BREACH OF ANY REPRESENTATION OR FAILURE TO COMPLY WITH THIS AGREEMENT OR THE USER TERMS; (C) ANY MISUSE OF THE MOBILE/CLOUD SERVICES BY YOU, YOUR EMPLOYEES OR AGENTS, OR ANY AUTHORIZED USER; (D) ACTIONS BY THIRD PARTIES THAT DELAY, ALTER OR CORRUPT THE MOBILE/CLOUD SERVICES; (E) ANY CLAIM BY ANY AUTHORIZED USER THAT THE AUTHORIZED USER INCURRED A LOSS DUE TO THE MOBILE/CLOUD SERVICES. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Unless Client and SmartOS have executed a written agreement that specifically modifies, supersedes, and replaces these Terms, the SmartOS Proposal and Sales Order Form and these Terms shall constitute the final, complete, and exclusive agreement of the parties with respect to all Sales by SmartOS to Client and shall supersede all prior offers, negotiations, understandings, and agreements. No additional or different terms or conditions shall become a part of any agreement for any Sale unless expressly accepted in writing by an authorized officer of SmartOS. Any waiver by SmartOS of one or more of these Terms or any default hereunder shall be in a writing executed by a duly authorized officer of SmartOS and shall not constitute a waiver of any other of these Terms or of any prior or future default. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights. Any provision of these Terms that is determined to be invalid or unenforceable by a court of competent jurisdiction shall not impair or invalidate the remaining provisions of these Terms. All Sales shall be deemed made in and shall be governed by, the laws of the State of Connecticut without regard for its conflict of laws principles. Client hereby irrevocably and unconditionally submits to the jurisdiction of the federal and state courts located within the State of Connecticut for the purpose of any suit, action, or other proceeding arising out of or based upon these Terms.