These terms and conditions (these “Terms”) apply to the sale of EntryReady™ Hardware that Client is purchasing from SmartOS, LLC (the “EntryReady Hardware”) and the EntryReady Server™ (On Premise) software Client is licensing from SmartOS, LLC (the “EntryReady Connect Software”). Together, the EntryReady Hardware and the EntryReady Connect (On Premise) Software are referred to as the “EntryReady Products” or simply the “Products”. The sale of the EntryReady Hardware (each a “Sale” and, collectively, “Sales”) by SmartOS, LLC (“SmartOS”, “we”, and “us”) to the client identified in the SmartOS Proposal and Sales Order Form (the “Client”), are the exclusive terms and conditions upon which SmartOS makes all of its Sales. SmartOS will not accept any other terms and conditions for any Sale of its EntryReady Hardware, unless Client and an authorized officer of SmartOS have executed a written agreement that specifically modifies, supersedes and replaces these Terms in whole or in part as expressly set forth in such written agreement. Acceptance of all purchase orders from a buyer of EntryReady Hardware sold by SmartOS is expressly made conditional upon the buyer’s assent, express or implied, to these Terms without any modification, unless expressly set forth in such written agreement.
Client and SmartOS agree to each of the following terms:
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 EntryReady Hardware in connection with a Sale; (d) Client’s continued use of any EntryReady Hardware after the expiration or termination of any subscription for any EntryReady Hardware; or (e) 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.
2. Delivery and Installation
Unless otherwise agreed in writing by SmartOS, delivery of EntryReady Hardware in connection with a Sale shall be made either (a) in accordance with SmartOS’s shipping policy in effect on the date of shipment; or (b) by Client’s continued use of any EntryReady Hardware after the expiration or termination of any subscription for any EntryReady Hardware. 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: (x) delivery by SmartOS to the carrier or Client’s representative at SmartOS’s logistics center, if the EntryReady Hardware is sold and delivered to the Client at the expiration or termination of any subscription for any EntryReady Hardware; or (y) upon the expiration or termination date of the subscription agreement under which the EntryReady Hardware was rented, if the EntryReady Hardware is not sold and delivered to the Client at such expiration or termination. As it is anticipated that Client shall purchase EntryReady Hardware under this Agreement upon termination of an Access Control Subscription Agreement or a rental under a rental agreement with SmartOS, then no delivery or installation by SmartOS shall occur, as Client shall continue use of EntryReady Hardware after the expiration or termination of a subscription for Products.
3. No Software License
SmartOS offers 3 different solutions under its EntryReady™ by SmartOS access control program: (i) The Essentials Plan, which does not include the EntryReady™ by SmartOS Mobile Key; or (ii) The Online Plan, which allows use of the EntryReady™ by SmartOS Mobile Key and a digital plan; or (iii) The Cloud Plan, which allows use of the SmartOS cloud platform to manage the SmartOS Mobile Key. Upon termination of the Access Control Subscription Agreement or rental under a rental agreement with SmartOS, unless SmartOS and Client enter into a license agreement for a non-exclusive, enterprise-wide, perpetual license to use any of the EntryReady Connect Software (SmartOS’s proprietary system that is further described in the SmartOS Proposal and Sales Order Form comprising the Access Control Subscription Agreement), then the expiration or termination of the Access Control Subscription Agreement or rental under a rental agreement automatically terminates Client’s license to use any of the EntryReady Connect Software. 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. Client acknowledges that neither SmartOS nor these Terms grant Client any right, title or interest in the EntryReady Connect Software. 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. Price and Payment
Upon termination of the Access Control Subscription Agreement or rental under a rental agreement with SmartOS, Client may purchase the EntryReady Hardware for $1.00, AS IS, WHERE IS, WITH ALL FAULTS.
Client shall be and remain 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 (if applicable), 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
All unpaid amounts due under the Proposal and Sales Order Form or any invoices, any Access Control Subscription Agreement or rental under a rental agreement with SmartOS 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, Access Control Subscription Agreement or rental under a rental agreement with SmartOS 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. If SmartOS places any outstanding amounts due under the SmartOS Proposal and Sales Order Form, Access Control Subscription Agreement or rental under a rental agreement with SmartOS 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 under any such agreement, Client agrees to pay any and all costs associated with such collection effort, including, without limitation, court costs and expenses and attorneys 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 EntryReady Hardware 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.
7. DISCLAIMER OF ALL WARRANTIES UPON TRANSFER OF TITLE
Client expressly waives any right to reject the EntryReady Hardware or revoke acceptance of the EntryReady Hardware. Client assumes all risks and liability in Client’s continued use of the EntryReady Hardware or by use of the Products in combination with any other software, hardware, machinery, equipment, materials or substances. Because SmartOS has no control over Client’s use of the Products, SmartOS cannot make any performance warranties whatsoever.
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. CLIENT MAY NOT RELY UPON ANY REPRESENTATION OR OTHER ASSERTION REGARDING THE NATURE OR QUALITY OF PRODUCTS. CLIENT MUST RELY SOLELY UPON CLIENT’S OWN EXAMINATION AND TESTING OF THE PRODUCTS.
SMARTOS IS NOT RESPONSIBLE FOR DEFECTS OR DAMAGE RESULTING FROM ACCIDENTS, DISASTER, NEGLECT, MISUSE, IMPROPER INSTALLATION, IMPROPER OR UNAUTHORIZED SERVICE OR MAINTENANCE, UNAUTHORIZED REPLACEMENT PARTS OR ATTACHMENTS; OR DYSFUNCTION OR MALFUNCTION OF, OR CAUSED BY, ANY OTHER PRODUCT OR DEVICE.
a) 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.
b) SmartOS assumes no responsibility for, any software, equipment or devices used in conjunction with the EntryReady Hardware.
c) SmartOS is not responsible for expendable parts that routinely require replacement in less than a year.
d) SMARTOS DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES. UNDER NO CIRCUMSTANCES WILL SMARTOS BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
e) 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.
f) All costs or damage shall be excluded from SmartOS’s liability. SmartOS shall not be responsible for any 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.
g) 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.
8. 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.
9. 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 EntryReady Hardware 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.
Unless Client and SmartOS have executed a written agreement that specifically modifies, supersedes and replaces these Terms, the applicable SmartOS Proposal and Sales Order Form or Access Control Subscription Agreement or rental under a rental agreement with SmartOS 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.