TERMS AND CONDITIONS
Verdant Environmental Technologies, Inc.
(“Verdant”)

1. GENERAL

These Terms and Conditions will be deemed to be an integral part of all acceptances by Verdant and any contractual arrangements (collectively “Agreements”) and will supersede any conflicting provisions of any purchase order or other communication of Customer.

Prices shown include the Product as delivered only and do not include any additional fittings, installation, or adjustment unless specifically mentioned in writing.

2. PRODUCT AND SERVICE DESCRIPTION

2.1. Verdant sells:

• Verdant EMS Thermostats (“Thermostats”)
• Verdant EMS Network Connection Kits and Network Accessories (“Network Products”)
• Verdant EMS thermostat accessories (“Accessories”).
• Services with respect to a web based remote management application (“Web Site”)

(Collectively referred to as “Products”).

2.2. Verdant Provides:

2.2.1. Software embedded in the Thermostats and Network Products under a separate license (“Software”). Refer to Section 6

2.2.2. Services with respect to a web based remote management application (“Web Site”)

2.2.2.1. Web Site. Web Site is a Verdant operated website that enables remote monitoring and configuration of Verdant EMS thermostats. Web Site software and the network server software are updated periodically at Verdant’s discretion, which may include changes, additions and/or removal of Web Site features.

2.2.3. Verdant does not install Products. The Customer alone is responsible for their installation by competent parties. Products must be properly installed and configured to allow remote management capabilities. Verdant supplies installation guides recommending proper installation and configuration procedures.

3. TAXES

3.1. The Customer will pay any tax, levy, assessment, exaction, imposition, or other charge imposed by any local, state or federal government now or hereafter levied upon the production, sale, use, import, export, ownership, or shipment of Product or Services ordered or sold or licensed.

3.2. Where Verdant  does not collect sales tax, the Customer, whether an individual or a business, is obligated to pay a  USE TAX on goods received. The  % of USE TAX is determined based on the location of use. Please verify with your State tax authorities in order to remit the appropriate USE TAX and comply with relevant laws and regulations. Customer acknowledges that failure to report and/or pay USE TAX  is responsible and assumes all penalties and interest associated with such.

4. CLAIMS FOR DAMAGE IN TRANSIT

4.1. Verdant’s responsibility ceases upon delivery of goods to the carrier in good order at the point of shipment. The Customer is urged to examine all deliveries carefully immediately upon delivery and before signing receipt. If goods are visibly damaged, the Customer must have written confirmation of the damage noted on the freight bill or other receipt by the agent of the carrier. Signing a receipt without notation of damage to the Product will constitute conclusive evidence of receipt of the Product in satisfactory condition. Any claim of damage in transit should be promptly made by consignee against the transportation company.

5. DELIVERY

5.1. Verdant has no obligation to deliver the Product against any order until Verdant has accepted the order.

5.2. Delivery of any products purchased hereunder is subject to Verdant’ availability schedule. Verdant will make every reasonable effort to meet delivery dates quoted or acknowledged. However, Verdant will not be liable for any failure to meet such dates.

5.3. Verdant may make partial shipments to Customer and invoice accordingly, and Customer will be obligated to pay for such partial shipments when invoiced.

5.4. Verdant will not be liable for any delay in shipment or any failure to ship the Product against an accepted order or for any damages suffered by reason thereof, when such delay or failure is directly or indirectly due to accident ( in manufacture or otherwise), fire, flood, seizure, riot, war, embargo, labor stoppages or difficulties, inadequate transportation facilities, shortage of material or supplies, delay or default on the part of its suppliers, regulation or order by government authority, border customs delays or any other casualty or cause beyond the reasonable control of the Verdant.

6. SOFTWARE

6.1. The Products are designed to be used in conjunction with an Internet based remote management system provided by Verdant, whereby:

6.2. License. Verdant will grant to Customer a non-exclusive and non-transferable license to use the System and the Software subject to the conditions therein set forth. The Software and all trade secret, copyright, patent and other intellectual and proprietary rights therein, are and shall at all times remain the valuable property of Verdant. No statement or recommendation made or assistance given to Customer by Verdant or any supplier to Verdant shall constitute a waiver of any of these Terms and Conditions.

6.3. Customer acknowledges that the Software is subject to the copyright of and is the exclusive confidential property and a trade secret of Verdant. Customer further acknowledges that all information related to the nature of and use of the Software is confidential information. Customer shall exert its best efforts at all times to protect the confidentiality of such information, and to take whatever steps are necessary to assure such protection.

7. LIMITED WARRANTIES

7.1. Products. Verdant warrants that the Products are free from defect in material and workmanship.

7.2. Software. Verdant warrants that the Software which is designed by Verdant for use with the Products, when properly installed, will not fail to execute its programming instructions due to defect in materials and workmanship. Verdant does not warrant that the operation of the software will be uninterrupted or error free.

7.3. Warranty Period. The above Products warranty is limited. It will remain in effect until 12 months has expired from the date that Products are shipped by Verdant.

7.4. Warranty Exclusions.

7.4.1. Products. Verdant is not responsible (i) for installation of Products by third parties; (ii) should Products and network features not function wholly, partly or with interruptions as a result of faulty installation and/or configuration of Products, including, in particular, failure of the installer to follow Verdant’s recommended installation procedures; and (ii) for electromagnetic or radio frequency interference resulting from faulty installation or failure to install in accordance with Verdant’s recommended installation procedures;

7.4.2. Software. Verdant is not responsible for faulty performance arising from:

7.4.3. Operator errors, power failures, electromagnetic or radio frequency interruptions, equipment malfunctions or any other causes beyond Verdant’s control. Access to remote management capabilities relies on availability, proper configuration and operation of third party equipment and services at the Customer’s site: in particular, Verdant’s network connection kit needs to be continuously powered and connected to the Internet. Customer is responsible for all third party equipment and services;

7.4.4. Failure of operating systems or of software not supplied by Verdant, to perform according to their respective specifications;

7.4.5. Equipment configuration changes made on the remote management website by the customer; or construction or renovation at the Customer’s site which interferes with the existing configuration of the Product and the ability of the Software to perform as designed; and

7.4.6. Damage caused by any hardware or software not supplied by Verdant.

7.4.7. Any alteration or modification to the Products or Software by Customer without the prior written consent of Verdant shall void the foregoing warranties and discharge Verdant from all its obligations with respect thereto.

7.5. THE WARRANTIES CONTAINED IN THIS SECTION ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATIONS OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY THAT THE PRODUCT IS MERCHANTABLE OR THAT THE PRODUCT IS SUITABLE FOR THE CUSTOMER’S PARTICULAR PURPOSES.

7.6. Upon written notification of any failure to conform to Verdant’s express warranties, Verdant will have the right either to replace or repair any defective Products or Software or to grant a reasonable allowance on account of such defects, and Verdant’s liability and Customer’s exclusive remedy for defective Products and Software will be limited solely to such replacement repair, or allowance, as Verdant may elect. Verdant will be given reasonable opportunity to investigate all claims and no Product will be returned to Verdant until after approval by Verdant and receipt of written shipping instructions from Verdant.

7.7. With respect to any particular defect, the effectiveness of the warranties contained herein is conditional upon Customer’s substantiation that the Products have been stored, installed, maintained and operated in accordance with such instructions or installation guidelines and installation recommendations as are given by Verdant to Customer and with standard industry practice.

8. PAYMENTS

8.1. Terms will be strictly enforced on all accounts.

8.2. Accounts in excess of 30 days will be charged a service charge of maximum permitted by law.

8.3. Customer will be responsible for all costs and expenses incurred in the collection of any outstanding amounts, including reasonable collection agency or attorney’s fee.

9. ACCEPTANCE

9.1. Customer will be deemed to have accepted the products covered by this contract upon the earlier of: (a) delivery to Customer; (b) utilization of the product by Customer for any useful work.

10. COPYRIGHTED MATERIALS

10.1. Unless otherwise agreed to in writing by Verdant, copyrighted materials supplied by Verdant, including software and printed documentation, may not be copied or reproduced in any manner.

11. NOTICES

11.1. All notices, consents, requests, instructions, approvals, and other communication hereunder will be in writing and given by personal delivery or by telex or telegraph or registered or certified mail, return receipt requested, to the address of Customer or Verdant as shown on the Product sale Agreement or to such other address as any party hereto may, from time to time, designate in writing. Notices will be deemed to be effectively given upon receipt by the other party.

12. EXCLUSIVITY OF REMEDIES

12.1. CUSTOMER WILL HAVE NO REMEDIES, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, WITH RESPECT TO OR ARISING OUT OF THE SALE, CONDITION, OR OPERATION OF THE PRODUCT.

13. LIMITATION OF LIABILITY

13.1. VERDANT WILL NOT BE LIABLE IN CONTRACT OR IN TORT TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO, DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT OR CUSTOMER OR ANY OTHER PERSON, LOSS OF PROFITS OR REVENUES, LOSS OF USE OR OPPORTUNITY) ARISING FROM OR WITH RESPECT TO VERDANT’S OBLIGATIONS UNDER AGREEMENT TO WHICH THESE TERMS & CONDITIONS APPLY.

14. PATENT INDEMNITY

14.1. Verdant shall, except as otherwise provided herein, defend or settle any claim made or any suit or proceeding brought against Customer so far as it is based on an allegation that any product furnished hereunder infringes a patent of the country in which Customer takes delivery of said product, provided that Verdant is timely notified of any such claim, suit or proceeding and is given information, assistance and the sole authority to defend or settle the same at Verdant’ expense. In case said product is in such suite held to infringe the said patent and the use of said product is enjoined, or in the case of a settlement as referred to above, Verdant will have the option, at its own expense, to procure for Customer the right to continue the use of said product, or to modify the same so that it becomes non-infringing, or refund the depreciated value of said product and accept return of same. Verdant will have no liability for infringement resulting from compliance by Verdant with Customer’s designs, specifications or instructions, or in the event of modification of the product by Customer or use by Customer of said product other than as specified in relevant Verdant publications or use by Customer of said product together with products not supplied by Verdant. In no event will Verdant have any infringement liability in excess of the purchase price of the infringing product.

15. RETURN OF MERCHANDISE

15.1. No return of any merchandise to Verdant will be accepted unless previously authorized in writing by Verdant, whether under warranty or otherwise. Any returns other than under warranty will be subject to a reasonable restocking charge. Verdant will not accept the return of any Products which have been abused, damaged or defaced indelibly by Customer or a third party, tampered with, modified or put to an unauthorized use.

16. MISCELLANEOUS

16.1. Order of Precedence. These Terms & Conditions take precedence over Customer’s additional or different terms and conditions, to which notice of objective is hereby given. Acceptance by Customer is limited to these Terms & Conditions. Neither Verdant’s commencement of performance nor delivery will be deemed or construed as acceptance of Customer’s additional or different terms and conditions. No change or modification of any of these Terms & Conditions will be valid or binding unless in writing and signed by an authorized representative of the party to be bound.

16.2. Severability of Provisions. In case any one or more of the 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 in any way be affected or impaired thereby.

16.3. Assignment. Verdant or Customer will not assign the rights or transfer of obligations under any Agreement to which these Terms & Conditions apply without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that each of the parties may, without the consent of but upon notice to the other party, assign its rights and transfer its obligations under any Agreement to which these Terms & Conditions apply to any corporation which is parent, subsidiary, or affiliate of the assignor as long as the assigning party remains joint and severally liable with the assignee for the fulfillment of all of the obligations of the assignee and further provided that Customer may assign any Agreement to which these Terms & Conditions apply to a purchaser of the site in which the Products are installed without the consent of but upon notice to the Verdant provided that Customer is not in default of its obligations at the moment of the assignment and the assignee agrees in writing to respect all of the Agreement to which these Terms & Conditions apply.

16.4. Insolvency. Except as may be prohibited by bankruptcy laws, in the event that Customer becomes insolvent or unable to pay its debts as they become due, or in the event of voluntary or involuntary bankruptcy proceedings by or against Customer, or appointment of a receiver or assignee of Customer for the benefit of creditors, Verdant may elect to cancel any unfulfilled obligations hereunder.

16.5. Construction and Modification. This writing is intended by the parties as a final expression of their agreement as a complete and exclusive statement of its terms. These Terms & Conditions can only be modified in a written form signed by Verdant and Customer.

16.6. Governing Law. Any dispute concerning the interpretation of an Agreement to which these Terms & Conditions apply will be governed by the laws of the Province of Quebec, Canada, and will not be subject to the United Nation Convention on the International Sale of Goods. Disputes arising hereunder will be resolved by binding arbitration, to the exclusion of the courts, in English at Montreal, Canada, before a single arbitrator pursuant to the Code of Civil Procedure of the Province of Quebec, Canada.

16.7. Counterparts. An Agreement to which these Terms & Conditions apply may be executed in one or more counterparts. Provided all of the parties sign in counterparts, each signed counterpart will constitute an original and all of the counterparts taken together will constitute one and the same agreement. Moreover, should the parties sign in counter¬parts, an Agreement to which these Terms & Conditions apply may be transmitted by the parties to each other by telecopy or by email in a read-only format. When so signed and transmitted by all of the parties to each other, an Agreement will be as binding and effective for all legal purposes as if the parties had signed an executed original agreement in the presence of each other. Should the parties sign in counterparts or by telecopy or email exchange of documents, they agree to replace such counterpart signatures or telecopy or email signatures with originally signed documents as soon as possible.

16.8. Verdant reserves the right to change the aforementioned TERMS AND CONDITIONS without notice.

XV05XXVIII2251

Verdant

Verdant is an industry leader in commercial energy management solutions.

Our VX thermostat and Verdant EI energy management service deliver significant energy savings without compromising guest comfort.­

© 2017 Verdant Environmental Technologies.

CONTACT

1850 55th Ave.

Lachine, Quebec, Canada, H8T 3J5

Phone: (888) 440 0991

Local:   (514) 344 4448

Fax:      (514) 344-5977