TERMS AND CONDITIONS
The entity selling goods or Services (defined below) (hereinafter collectively referred to as “Goods”) hereunder (as applicable, the White-Rodgers or Residential Solutions divisions of Emerson Electric Co. or Verdant Environmental Technologies Inc. or any of their respective affiliates, each individually and not jointly), is herein referred to as the “Seller” and the customer, person, or entity purchasing Goods from Seller hereunder is referred to as the “Buyer”. Sale of Goods includes Seller granting to Buyer a license to use any software and/or firmware (“Software”) which are preloaded, or to be loaded into such Goods. These Terms and Conditions, any Seller price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale of the Goods and all documents incorporated by specific reference therein, constitute the complete and exclusive statement of the terms of the agreement governing the sale of Goods by Seller to Buyer. Buyer’s acceptance of the Goods will manifest Buyer’s assent to these terms and conditions without variation or addition. Any different or additional terms in Buyer’s purchase order or other Buyer documents including Buyer’s online tools requiring Seller to accept terms prior to use are hereby objected to. Seller reserves the right in its sole discretion to refuse orders.
- PRICES: The price at which this order is accepted, whether in Seller’s price list, schedule, acknowledgment or written quotation, is subject to change without notice and the invoice will reflect price in effect at the time of shipment.
- TAXES: Any current or future tax, tariff, or governmental charge (or increase in same} affecting Seller’s costs or production, sale, shipment, or delivery or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods (but excluding any tax on Seller’s net income or profit) shall be for Buyer’s account, and to the extent paid by or levied or assessed against Seller, shall be either added to the price or billed to Buyer separately, at Seller’s election.
- TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net thirty (30) days from the date of Seller’s invoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with the Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly, or Seller otherwise deems itself insecure. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any amount owed to Seller is not paid when due, it shall bear interest at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Goods theretofore delivered. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries. Buyer hereby grants Seller a security interest in all Goods sold to Buyer by Seller, which security interest shall continue until such Goods are fully paid for in cash or other means approved by Seller, and Buyer, upon Seller’s demand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security
- SHIPMENT DELIVERY AND TITLE: Unless otherwise expressly provided, shipments are made F.O.B. Seller’s shipping point. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by the Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions. If the shipment of the Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all handling and storage costs and other additional expenses resulting therefrom. Notwithstanding any provision to the contrary in this or other documents related to this transaction, and regardless of how price was quoted, whether FOB, FAS, CIF or otherwise, legal title to the Goods and risk of loss shall transfer from Seller to Buyer (a) for sales originating from the United States for which the end destination of the Goods is outside of the United States, immediately after the Goods have passed beyond the territorial limits of the United States, and (b) for all other shipments, upon delivery to and receipt by carrier at Seller’s shipping point. All claims for shipping errors, lost shipments, or any other discrepancies must be made within ninety (90) days or they will be disallowed and deemed waived.
- LIMITED WARRANTY: Subject to the limitations of Section 6, Seller warrants, to its direct purchasers and to no others, that the Goods purchased for resale hereunder will be free from defects in material and workmanship under normal use and regular service and maintenance for the period specified in the Seller’s warranty applicable to Goods sold in effect on the date of shipment, a copy of which has been or will be furnished to Buyer upon This warranty shall not apply to any Goods which: (a) Have been repaired or altered outside Seller’s factory by other than Seller in any manner so as, in Seller’s judgment, to affect its serviceability or proper operation; (b) Have been subjected by persons other than Seller to improper handling, operation, maintenance, repair, or alteration; (c) Have been subjected to misuse, negligence, improper installation or accident, including operator error; or (d) Are not tagged with a “Returned Goods Identification Tag” or a White-Rodgers warranty tag (Form #3903) before returning such Goods to Seller. Seller is not responsible for faulty performance arising from: (a) operator errors, power failures, electromagnetic or radio frequency interference, equipment malfunctions, or any other cause beyond Seller’s control; (b) equipment configuration changes made on a remote management website by Buyer, or any physical interference at Customer’s site that interferes with the existing configuration; and (c) any damage done by hardware or software supplied by a third-party. Buyer is responsible for all third-party equipment and services necessary to operate any Goods. Seller’s obligation under this warranty, and the Buyer’s exclusive remedy for the breach thereof, shall be limited to, at Seller’s option, replacement of any alleged defective Goods or issuance of credit, excluding the cost of labor and any other expenses incurred in servicing the unit on which the Goods are installed. Seller requires the return of any allegedly defective Goods, transportation prepaid, before honoring any claim. All returned Goods are subject to inspection, and if examination at the factory does not disclose any defect covered by this warranty, replacement of such Goods or issuance of credit for same will not be approved. Any alteration or modification by Customer without prior written consent of Seller shall void the foregoing warranties and discharge Seller from all its obligations with respect thereto.
THESE WARRANTIES CONSTITUTE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND BUYER’S EXCLUSIVE REMEDY WHETHER THE CAUSE OF ACTION BEBASED IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER IN CONNECTION WITH THE SALE, RESALE OR USE OF THE GOODS.
Products purchased by Seller from a third party for resale to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer. This Section applies to any entity or person who may buy, acquire or use the Goods and same shall be bound by the limitations therein, including Section 6. Buyer agrees to provide such subsequent transferee conspicuous, written notice of the provisions of Sections 5 and 6.
- LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, REPLACEMENT, REFUND OR CREDIT OF THE PURCHASE PRICE UNDER SECTION 5. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR PORTION OF THE GOODS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, AND BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER FOR ANY DAMAGES INCURRED BY SELLER IN EXCESS THEREOF. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHICH ARE WAIVED BY BUYER AND AS TO WHICH BUYER SHALL INDEMNIFY SELLER. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use of revenue, reputation and data costs incurred, including without limitation, for capital, fuel, power, and/or loss or damage to property, product or equipment.
Further, Buyer shall indemnify and hold Seller harmless from any liability to Buyer, Buyer’s employees, workers, contractors, or any other persons arising out of Buyer’s, or any other persons’, use of the Goods. It is further expected that all instruction and warnings supplied by Seller will be passed on to those persons who use the Goods. Seller’s Goods are to be used in their recommended applications and all warning labels adhered to the Goods by Seller are to be left intact. Any technical advice furnished by Seller with respect to the use of the Goods is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s sole risk.
- PATENTS AND COPYRIGHTS: Subject to the limitations set forth herein and in Section 6, Seller warrants that the Goods sold, except those goods made specifically for Buyer according to Buyer’s drawings or specifications or otherwise at Buyer’s direction (“Custom Goods”}, do not infringe any valid U.S. patent or copyright, as the case may be, in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged, and that Buyer cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of Seller’s warranty as to use patents only applies to infringements arising solely out of the inherent operation, according to Seller’s specifications and instructions, of such Goods. In the event such Goods are found to infringe such a U.S. patent or copyright in such suit, and the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods, or replace them with non-infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods upon their return. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods, without liability. Buyer agrees to indemnify and make Seller harmless from all expenses and damages resulting from any claim, suit, or proceeding for alleged infringement of any patent or copyright based in whole or in part upon the manufacture, sale, or use of any Goods or any part thereof, in combination or assembly with machinery or apparatus not furnished under this agreement. Seller owns all Output (defined below) generated by the use of the Goods. Subject to the terms and conditions of this Agreement, Seller hereby grants Buyer a worldwide, nonexclusive, nontransferable, perpetual, royalty-free license to use the Output. For purposes of this Agreement. “Output” means all electronic data or information generated through Buyer’s use of the Goods. To the extent Buyer intends to sub-license any data or Output to a third-party integrator, Buyer is responsible for ensuring the third-party integrator understand and agrees to the terms of this Section in regards to the license granted.
- EXCUSE OF PERFORMANCE (FORCE MAJEURE): Seller shall not be liable for delays in performance or for non- performance, if caused directly or indirectly, by acts of God; acts of Buyer; war; fire; flood; weather; sabotage; strikes, lockouts, slowdowns, picketing, or other labor disputes or controversies; civil disturbances or riots; governmental requests, tariffs, restrictions, allocations, laws, regulations, orders, or actions; unavailability of or delays in transportation; accidents, delays or default of or failure by common carriers; shortage of labor; delay in obtaining or inability to obtain materials, equipment or parts from regular sources; default of suppliers; or unforeseen circumstances or events beyond Seller’s reasonable control, or without Seller’s fault, whether similar or dissimilar to the foregoing. Deliveries or other performance may be suspended for an appropriate period of time or cancelled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected.
If Seller determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited, or made impracticable due to causes set forth herein, Seller may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
- CANCELLATION: Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred to cover commitments made by the Seller and a reasonable profit thereon. Seller’s determination of such termination charges shall be conclusi
- CHANGES: Buyer may request changes or additions to the Goods consistent with Seller’s specifications and In the event such changes or additions are accepted by Seller, Seller may revise the price(s), license fee(s), and date(s) of delivery. Seller reserves the right to change designs and specifications for Goods without prior notice to Buyer. Seller shall have no obligation to install or make such change in any Goods manufactured prior to the date of such change. Seller reserves the right to change these Terms and Conditions without notice.
- ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of the Seller, and any such assignment, without such consent, shall be
- INSTALLATION: Buyer shall be responsible for receiving, inspecting, testing, storing, installing, starting up, and maintaining all Goods.
- INSPECTION/TESTING: Buyer, at its expense, agrees that it will promptly inspect the Goods upon receipt thereof, and in no event later than thirty (30) days from the date of receipt of the Goods. Buyer shall deliver to Seller within fifteen (15) days of inspection, but in no event later than forty-five (45) days from the date of receipt of the Goods, written notice of any and all deficiencies, defects, variations from specifications or complaints of any kind with respect to the quantity, quality, condition, shipment performance, price or appearance of the Goods so received by Buyer. In the event no such written notice is received by Seller, Buyer shall be deemed conclusively to have inspected and accepted all such Goods unconditionally and to have waived any and all rights and claims, including without limitation any right to reject the Goods or to claim damages in respect thereof. Buyer may not return Goods without first advising Seller of the reasons therefore, obtaining from Seller a Returned Goods Authorization Number and observing such instructions as Seller may give in authorizing such return. Buyer, at its option, may inspect and observe the testing by Seller of the Goods for compliance with Seller’s standard test procedures prior to shipment, which inspection and testing shall be conducted at Seller’s plant at such reasonable time as is specified by Seller. Any alleged rejection of the Goods at Seller’s plant must be made promptly by Buyer before Tests shall be deemed to be satisfactorily completed and the test fully met when the Goods meet Seller’s criteria for such procedures.
- DRAWINGS: Seller’s prints and drawings (including without limitation, the underlying technology) furnished by Seller to Buyer in connection with this agreement are the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing and sale of same. Possession of such prints or drawings does not convey to Buyer any rights therein or license thereto. Upon termination of this agreement, or at any time upon Seller’s request, all such prints and drawings, and any copies or duplications of same (in whatever medium), shall be immediately returned to Seller.
- QUANTITY: Buyer agrees to accept quantities of plus or minus ten percent (10%) of the order on Goods, including Any such additional items shall be priced at the price per item charged for the specific quantity ordered.
- TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods and are due and payable upon completion of the tooli All such tools or tooling dies and patterns shall be and remain the property of Seller. Charges for tools, dies, and patterns do not convey to Buyer, title, ownership interests in, or rights to possession or removal, or prevent their use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision.
- DOCUMENTATION: Seller shall provide Buyer with that data/documentation which is specifically identified in Seller’s If additional copies of data/documentation are to be provided by Seller, it shall be provided to Buyer at Seller’s applicable prices then in effect.
- CONFIDENTIALITY: Seller (including without limitation its successors, assigns, agents or any person or entity acting at Seller’s direction) shall not be responsible for keeping confidential any specifications, drawings, designs, manufacturing data or other information of any nature provided by Buyer hereunder; and further, Seller shall not be liable for any damages, costs or expenses of any nature arising out of any dissemination of such documents or information.
- EXPORT CONTROL REGULATIONS: Buyer agrees that all applicable import and export control laws, regulations, orders, and requirements, including without limitation those of the United States and the jurisdictions in which the Seller and Buyer are established or from which Goods and Services may be supplied, will apply to their receipt and use. Buyer shall not sell, transfer or otherwise dispose of any Goods or related software, know-how, technical data, documentation or any other products or materials ( Items ) furnished to it pursuant to this agreement to any party or in any manner which would constitute a violation of applicable laws, regulations, orders or requirements , including S. Export Control Laws (now or hereafter in effect). The U.S. Export Control Laws prohibit, without limitation, exports, transfer, transshipments or re-exports of Items to: (a) such countries or regions that are subject to U.S. sanctions or embargos programs or (b) such entities or individuals that appear on certain U.S. government lists (now or hereafter in effect), including, but not limited to: (1) Specially Designated Nationals List (2) Denied Persons List; (3) Unverified List;
(4) Debarred List or (5) Entity List. available at: http://www.bis.doc.gov/cornplianceandenforcemenUindex.htrn#ltc.
- SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable third-party licensor to Seller shall retain all rights of ownership and title in its respective Software, including without limitation all rights of ownership and title in its respective copies of such Software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software incorporated into the Goods solely for purposes of Buyer properly utilizing such Goods purchased from All other Software shall be furnished to, and used by, Buyer only after execution of Seller’s (or the licensor’s) applicable standard license agreement, the Terms of which are incorporated herein by reference. Buyer further acknowledges the Software is subject to the copyright of and is the exclusive property of Seller. All information related to the nature of and use of the Software is confidential information and Buyer shall always exert its best effort to protect the confidentiality of such information, and to take whatever steps necessary to assure such protection.
- MISCELLANEOUS: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by its duly authorized representative. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by Seller. No modification shall be affected by the Seller’s receipt or acceptance of Buyer’s purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected by No waiver by Seller with respect to any breach or default of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by the Seller. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the state of Missouri without regard to its conflict of law principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in Missouri and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of the action has accrued. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to this Purchase Order or any transactions relating thereto. In case any one or more provisions contained in these Terms & Conditions should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions will not be affected or impaired thereby.
- NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS: Buyer accepts goods and/or Services with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchaser or users and to defend, indemnify, and hold harmless Seller from any claims, losses, suits, judgments, and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract, or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
VERDANT EI TERMS AND CONDITIONS OF SERVICE
General Terms and Conditions of Service (the “Agreement”) for the use of Verdant Environmental Technologies Inc.’s proprietary EI services (the “Services”, as defined in Section 1.1 below) by Verdant Environmental Technologies Inc. (“Verdant”) to the entity (the “Client”) that has contracted for the Services.
1.1 Performance of Services. Subject to the terms of this Agreement, Verdant will perform the services described in the purchase order or contract between Verdant and the Client (the “Contract”) during the Term (as defined in Section 7.1 below).
1.1.1 Access and Use of Software. Subject to the terms of this Agreement and as part of the Services, Verdant grants the Client a limited, non-transferable, non-exclusive right to access and use Verdant proprietary tools and software products, as applicable (the “Software”) during the Term. No provision under this Agreement shall obligate Verdant to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code form.
1.2 License Restrictions. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, the Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software or authorize any third party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; Because the Software are proprietary, the Client agrees not to publish or disclose to third parties any evaluation of the Software without Verdant prior written consent.
1.3 Ownership. The Client retains all right, title and interest to any and all information provided, inputted or uploaded to the Software by the Client, users of the Client’s services, or by Verdant on the Client’s behalf. Verdant has no right, title or interest in any personally identifiable information related to customers of the Client. Notwithstanding the preceding, Verdant will have the right to retain, reproduce and use non-personally identifiable information and data gathered during the performance of the Services for the purpose of assembling aggregated attitudinal and usage statistics. Verdant shall retain all right, title and interest in and to the Software, Services, the documentation for the Software, and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether the Client have provided input regarding such modifications and/or enhancements. The Client acknowledge that Verdant will retain all right, title and interest to transactional and performance data related to use of the Software and performance of the Services which Verdant may collect, use and disclose for its business purposes (including, but not limited to, software use optimization and product marketing) provided that such use does not reveal the Client identity, any of the Client Confidential Information or any personally identifiable information that belongs to the Client or its customers.
1.4 Equipment. The Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Software. Verdant reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the Term of this Agreement as deemed reasonably necessary by Verdant to provide service to Verdant customers. Such changes will not materially degrade the performance of the Software or materially decrease the core functionality of the Software.
1.5 Ethical Hacks. The Client shall not and shall not allow anyone working on the Client’s behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without Verdant prior written consent, or (ii) attempt to access the data of another Verdant customer.
1.6 Notwithstanding anything to the contrary, Verdant may, at its sole discretion, update, supplement, modify, enhance or delete any of the features or functionalities of the Services or the Software provided that Verdant does not degrade the core functionality of the Services/Software.
Verdant will provide support in accordance with Verdant then current support policy, which may be acquired from the Client’s Verdant contact. For clarity, Verdant may, at its sole discretion, update or modify such support policy or otherwise cease the provision of support of any or all of its products, Services or Software at any time without notice. Unless specifically agreed in writing, Verdant has no obligation to provide the Client with hard-copy documentation, upgrades, enhancements, modifications, or other support.
- BILLING AND PAYMENT
3.1 Billing. The Client will be billed or invoiced when such Services are added. The fees for all Services will be billed or invoiced on the Commencement date or the anniversary of that date (in the case of renewals); and will be billed for a twelve (12) month period, representing the Initial Term or a subsequent Renewal Term(s). Any additional Services added during the Initial Term or subsequent Renewal Terms will be billed or invoiced at the full annual fee with Client’s other Services.
3.2 Price Increases. The pricing may be adjusted during the Initial Term or subsequent Renewal Terms by Verdant, upon thirty (30) days’ prior written notice to the Client.
3.3 Fraudulent or Delinquent Payment. In the event that the Client’s account is delinquent, Verdant reserves the right to suspend the performance of the Services, with no liability to the Client, until such amounts are paid in full. The Client agrees that Verdant may impose a charge to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.5% per month (18% per annum) on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
- PASSWORDS AND SECURITY
4.1 Passwords. The Client will choose or be given all applicable passwords to use in connection with the Services. The Client is responsible for maintaining the confidentiality of the Client’s passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by the Client). Furthermore, the Client is responsible for any and all activities that occur under the Client’s account (including, if applicable, the accounts of each user accessing the Service by means of an account established by the Client).
4.2 Security. The Client shall notify Verdant immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by the Client) or any other breach of security. Verdant will not be liable for any loss or damage arising from the Client’s failure to comply with these requirements.
- CONFIDENTIAL INFORMATION
By reason of the relationship hereunder, each party will have access to certain information and materials concerning the other party’s technology business, plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Confidential Information of Verdant shall include, without limitation, information specifically designated as confidential, the features and functions of the Services that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to the Client, the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, any statements of work, schedules, addenda or amendments to this Agreement, performance and security test results (whether conducted by Verdant or the Client), and any other proprietary, financial or business information supplied to the Client by Verdant. Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement.
- TERM AND TERMINATION
6.1 Term. The Services shall be provided from the commencement of the subscription (the “Initial Term”) and will automatically renew for consecutive twelve (12) month terms (the “Renewal Term”) unless terminated by Client in writing no less than thirty (30) days prior to the commencement of the Renewal Term.
6.2 Commencement. The Client subscription shall commence upon the earlier of: (i) the order by the Client of the Services; or (ii) the commencement date indicated in the contract or purchase agreement between the Client and Verdant.
6.3 Termination/Cessation of Services.
- Termination for Cause. The Client or Verdant may terminate the Services for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of the 30-day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, any account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to the Client and without any obligation on the part of Verdant to maintain, store or return any the Client’s data.
- Cessation of Services. Verdant may, in its sole discretion, terminate the provision of the Services (or any portion thereof) and/or the offering of the Software without cause in the event Verdant elects to cease offering the Services (or the applicable portion thereof) and/or Software to its customers generally provided that Verdant provides the Client a minimum of 180 days notice of such termination/cessation.
6.4 Survival. The provisions of Sections 5 and 8 will survive termination or expiration of the Contract.
- SERVICE WARRANTY & EXTENDED PRODUCT WARRANTY
7.1 Service Warranty. Verdant represents, warrants, and covenants that the Services will be performed in accordance with industry good practices and that the Software will perform substantially in accordance with any user instructions, manuals, or technical requirements documents that are generally provided by Verdant in connection with the Software. In the event of a breach of the foregoing representation, Verdant sole obligations, and the Client’s sole remedy, shall be, at Verdant option, to use commercially reasonable efforts to correct or re-perform the Services, depending on the case and at Verdant’s discretion.
7.2 Extended Product Warranty. This extended product warranty applies to Verdant products purchased at the same time as the subscription to the associated Services by the Client. In such circumstances, Verdant shall extend the standard “Hardware” product warranty (set forth at https://www.verdant.co/verdant-warranty/) for the Verdant products (the “Extended Product Warranty”). Such Extended Product Warranty shall run for the entirety of the Initial Term and subsequent Renewal Terms. The Extended Product Warranty complements, but does not replace the manufacturer’s warranty.
- DISCLAIMER, LIMITATION OF LIABILITY AND ADDITIONAL RIGHTS
8.1 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS PROVIDED IN SECTION 8, THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND VERDANT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. VERDANT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES.
8.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, VERDANT’S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY THE CLIENT TO VERDANT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE IN ANY EVENT UNDER THIS AGREEMENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT) INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement is between Verdant and the Client, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Services by means of an account established by the Client). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The Client may not assign, transfer, or sublicense this Agreement except with Verdant prior written consent. This Agreement shall be governed by and construed under the laws of the Province of Quebec and the laws of Canada applicable therein, without regard to the conflict of laws provisions thereof. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the Province of Quebec, Judicial District of Montreal. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. The Client and Verdant agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the subject matter hereof and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. The terms and conditions contained herein shall prevail over any conflicting, preprinted terms and conditions contained in any other document from the Client, including signed or unsigned purchase orders. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in one or more counterparts and may be exchanged by facsimile or electronically scanned copy, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Quebec Residents: You have specifically requested the English version of this Agreement, a French version of which is available upon request. Vous avez spécifiquement demandé la version anglaise de cette Entente de service et la version française est disponible sur demande.
Terms of Service Exhibit 1 – Paid and Subscription Services
This Paid and Subscription Services Terms Exhibit (the “Exhibit”) describe the terms and conditions under which (as applicable) the White-Rodgers or Residential Solutions divisions of Emerson Electric Co. or Verdant Environmental Technologies, Inc. or any of their respective affiliates, each individually, not jointly (“Emerson”) will charge and/or bill you (“you” or “your” or “Customer” or “Additional User”), for use of additional, optional, add-on services or features, including, but not limited only to, Sensi Service Subscriptions and Verdant EI (the “Paid Service”) provided by Emerson. This Exhibit becomes part of the relevant Terms of Service (available at https://www.verdant.co/terms-and-conditions and https://sensi.emerson.com/en-us/legal), incorporated into this Exhibit by this reference.
- Charges, Fees, and Taxes That You Must Pay: You agree to pay all charges associated with the Paid Service, including, but not limited to, monthly service charges, premium service charges, applicable federal, state, and local taxes (however designated) and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Paid Service. YOU ARE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE RETROACTIVELY. We may change our prices, fees, the Paid Service, and/or the terms and conditions of contained or incorporated herein in the future. We will provide you with notice and an effective date of any change in our prices or fees, unless the change in price is related to a change in governmental or quasi-governmental taxes, fees, or assessments, in which case we may elect not to provide notice except where required by applicable law. Not all fees apply to all Services.
- How We Will Bill You: Except if you enrolled in services as part of a promotional program that does not require a term commitment, Paid Services are provided under an initial term (“Initial Service Term”), after which it will be provided to you on a month-to-month or annual basis. You will generally be billed in advance for recurring service charges and fees, including during the Initial Service Term. IN ADDITION, UNLESS OTHERWISE SPECIFIED BY EMERSON, YOU MUST PAY, ON OR BEFORE THE DAY WE INSTALL OR ACTIVATE ANY OR ALL OF THE PAID SERVICES, THE FIRST SERVICE CHARGES, AND ANY DEPOSITS. Your first bill may include recurring charges for the next billing cycle and charges for non-recurring charges for any non-recurring services you have received. If you make partial payments of any bill, Emerson will apply the payment to the outstanding charges in the amounts and proportions that it determines. However, Emerson does not waive its rights to collect the full balance owed to it by accepting partial payment. If you have pre-paid for a term service purchase from an authorized re-seller (“Pre-Paid Term”), you will not be billed for recurring service charges and fees, except if you choose to add premium services. You may receive a bill from Emerson directly if the authorized re-seller from whom you purchased the Pre-Paid Term elects for Emerson to bill you directly. At the end of the Pre-Paid Term, we will provide Paid Service to you on a month-to-month or annual basis (based on the nature of the Paid Service) unless you provide us with notice prior to the end of the Pre-Paid Term that you terminate your Paid Services. PAID SERVICES AUTOMATICALLY RENEW UNTIL CANCELLED BY YOU.
- Third-Party Charges That Are Your Responsibility: If you sign up for a Paid Service with a third-party or contractor, terms of that relationship are between you and the third-party and not with Emerson. You acknowledge that you may incur charges with third-party service providers that are separate and apart from the amounts charged by Emerson. These may include charges resulting from accessing the Internet, purchasing or subscribing to other offerings via the Internet, or purchasing equipment for use with or recommended by the Paid Service. You are solely responsible for all charges payable to third parties, including all applicable taxes.
- Payment by Credit Card: Emerson will charge your selected payment method (such as your credit card, debit card, gift card/code, or other method available in your Home Country) for any Paid Service, including any applicable taxes. If Emerson cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and we will attempt to charge the payment method again as you may update your payment method information. If you use a credit card to pay for the Paid Service, which use is governed by the card issuer agreement for that credit card, you must refer to that agreement for your rights and liabilities as a cardholder. You must be authorized to use the payment method that you enter when you create a billing account. You authorize Emerson to charge you using your payment method and for any paid feature that you choose to sign up for or use while this Exhibit is in force. Emerson may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Paid Services. You must keep all information in your billing account current. Any notice by you to Emerson will not affect charges we submit to your billing account before we reasonably could act on your request.
- Our Remedies if You Pay Late or Fail to Pay:
- Late or Non-Payments: You may be billed fees, charges, and assessments related to late payments or non-payments if for any reason (i) we do not receive from you any required payment for the Paid Service by the payment due date or (ii) you pay less than the full amount due for the Paid Service.
- Fees Not Considered Interest or Penalties: Emerson does not anticipate that you will fail to pay for the Paid Service on a timely basis and does not extend credit to customers. Any fees, charges, and assessments due to late payment or non-payment are not interest, credit service charges, finance charges, or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (a) whether you will pay for the Paid Service on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment.
- Collection Costs: If we are required to use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection. These costs include but are not limited to any collection agency’s fees, reasonable attorneys’ fees, and mediation or court costs.
- Suspension/Disconnect/Reconnection: If you fail to pay the full amount due for any or all of the Paid Service, Emerson, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Paid Service you receive. Should you wish to resume a Paid Service after any suspension, we may require you to pay a reconnection fee. Should you wish to reinstate any or all Paid Service after disconnection, we may require you to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Exhibit, and applicable law.
- Your Responsibilities Concerning Billing Questions: Subject to applicable law, if you intend to dispute a charge or request a billing credit, you must contact us prior to the end of the billing period. You waive any disputes or credits that you do not report within that time.
- Defined Terms: All terms used in this Exhibit and not otherwise defined shall have the meanings given to such terms in the Terms of Service referenced above.