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The terms and conditions included in this document constitute the entire agreement between the parties with respect to its subject matter and supersede any prior representations or agreements, oral or written, and all other communications between the parties. All sales by ADI Canada (“Seller”), are expressly conditioned by and under these terms and conditions (the “Terms”). These Terms may in some instances differ with those affixed to Buyer's purchase order or other documents, and any additional terms or terms conflicting with these Terms will not apply and are expressly rejected unless specifically set forth in a separate written agreement between the parties. Acceptance of Buyer's purchase order is expressly conditioned upon Buyer's acceptance of these Terms, which shall be established by a written acknowledgment, by implication, or by receipt, acceptance or payment for Products ordered. Seller's failure to object to any terms from Buyer shall not be deemed a waiver of these Terms. Any changes to these Terms must specifically be agreed to in writing and signed by an officer of Seller before becoming binding. These Terms shall inure to the benefit of and be binding upon each of the Parties and their respective successors, assigns, heirs, executors, administrators and trustees. These Terms govern the sale of product in Canada and Buyer is expressly prohibited from selling product outside Canada unless authorized by Seller. Additional terms for purchase of Snap One proprietary Products and services (“Snap One Products”) are included in Addendum 1 to these Terms.
All shipments are made EX Works (Incoterms 2020) named Seller's warehouse unless otherwise specified. Title to Products and risk of loss pass to Buyer upon shipment from Seller’s warehouse. Buyer agrees to purchase any insurance necessary to indemnify it against any loss in shipping. Buyer will determine any export license requirements, obtain any export license or other official authorization, and carry out any customs formalities for the export of Products. Buyer assumes all risk of loss in shipping and all liability for loss or damage, whether direct, indirect, consequential or otherwise, due to delays once the Products have been delivered to the carrier. Buyer will comply with all applicable laws, regulations and ordinances of any governmental authority in any country having proper jurisdiction, including, without limitation, those laws of Canada or other countries that regulate the import or export of the Products and shall obtain all necessary import/export licenses in connection with any subsequent import, export, re-export, transfer, and use of all Products, technology and software purchases licensed and received from Seller. Unless otherwise mutually agreed in writing, Buyer agrees that it will not use Products in connection with any activity involving nuclear fission or fusion, any use or handling of any nuclear material, or any nuclear, chemical or biological weapons.
Seller will sell the Products to Buyer at the prices listed on Buyer's then-current applicable price list, which may be changed from time to time with or without notice. From time to time, Seller may offer promotional pricing on certain Products. Prices do not include any municipal, state or federal sales, use, excise, value added or similar taxes. Consequently, in addition to prices specified, the amount of any present or future tax that may be imposed shall be paid by Buyer, or in lieu thereof Buyer will provide Seller with a tax exemption certificate acceptable to the taxing authorities. The Buyer is free to establish its own pricing for the Products but shall be subject to any pricing or advertising policies of the Seller (including minimum advertised pricing, where applicable).
Seller shall not be responsible for loss, damage, delay or failure with respect to the Products if due to or arising from shortage of raw materials or subcomponents, fires, labor troubles of any kind, accidents, breakdown of machinery, government acts of any kind (including in a contractual capacity), failure of manufacturers, subcontractors or suppliers to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, acts of God, acts of Buyer, epidemics or pandemics, or anything reasonably beyond Seller's control, whether or not presently occurring or contemplated by either party. Seller shall not be liable for damages, general, consequential or otherwise, or for failure to give notice of any delay until it shall have such additional time within which to deliver the Products as may be reasonably necessary under the circumstances. Seller shall have the right to apportion its inventory among its customers in such a manner as it considers acceptable and may deliver the Products in installments. Seller may terminate or suspend an order if there is a material breach by Buyer and Buyer fails cure such breach within 10 calendar days after receipt of written notice.
Buyer agrees to make all payments pursuant to the payment terms specified in the invoice, agreement or other notice that Seller provides to Buyer. If Seller does not receive payment by the payment due date, the entire outstanding balance of all open invoices on Buyer’s account shall become immediately due and payable. Buyer agrees to pay Seller a late charge in the amount of 1.5% (or the maximum rate permitted by law if less) of the delinquent amount remaining on the entire outstanding balance of all invoices on the first payment due date after Buyer’s failure to pay and monthly thereafter. Buyer agrees to pay all costs of collection on outstanding amounts, including agency and attorney’s fees, whether incurred in or out of court, on appeal, in arbitration, in bankruptcy court, or in any insolvency proceedings. Buyer may not set off invoiced amounts against sums that are due from Seller. Seller’s extension of credit is subject to Buyer maintaining its current credit standing. Credit memos must be used on outstanding balances or future purchases. In the event Buyer’s account with Seller is dormant for more than 3 months and has a credit balance, Seller may apply such balance against any future purchases at any time at Seller’s discretion until such credit balance is used in full. For accounts past due longer than 90 days with open credits, Seller may apply such credits against any debit balance which has remained open for 90 days or more.
All invoice disputes must be submitted to Seller in writing within 30 days following the date of such invoice. Thereafter, and absent written notice prior to the expiration of 30 days from the invoice date, Buyer waives its right to dispute the validity, existence or amount of such invoice. Stenographic and clerical error and omissions in the invoice are subject to correction.
All freight charges shall be for Buyer’s account on C.O.D. purchases whether Products are accepted or not. With respect to purchases by Buyer on credit, Seller reserves the right at any time to revoke credit extended to Buyer because of Buyer’s failure to pay for Products when due or for any reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery.
Buyer grants to Seller a continuing, specific and fixed security interest (and, to the extent applicable, a purchase money security interest) and in Quebec, a movable hypothec, in all of the Buyer’s property, rights and assets, including all personal property (in Quebec movable), together with all increases, additions and accessions (collectively, the “Secured Property”). For the Province of Quebec only, the hypothec created is for an amount equal to $200,000. Buyer shall execute, at Seller’s request, such other and further documents as may be necessary to evidence, perfect or amend such security interest. Upon any default by the Buyer in performing any of its obligations under these Terms, Seller may exercise all remedies available to it under applicable law. The Buyer acknowledges and consents to the filing by Seller of any financing statement deemed necessary or desirable by Seller under applicable personal property security legislation.
Products distributed by Seller are warranted by the third-party manufacturer, or pursuant to the terms of the warranty included in the packaging for Products manufactured by Seller, for a period as defined by the third-party manufacturer or in such documentation included with Seller's Products. Seller assigns to Buyer those warranties and only those warranties extended by such third-party manufacturers for non-Seller branded Products and provides only those warranties included in the packaging for Seller manufactured Products. Seller does not itself warranty any Products other than those it manufactures (and then solely pursuant to the terms and subject to the limitations set forth in the documentation included with such Products) and sells all other Products on an "AS IS" basis. Additional warranty terms for Snap One Products are included in Addendum 1 to these Terms.
THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS, FOR A PARTICULAR PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. IN NO CASE SHALL SELLER OR ITS AFFILIATES BE LIABLE TO ANYONE FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, FOR BREACH OF THIS OR ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, OR UPON ANY OTHER BASIS OF LIABILITY WHATSOEVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE LOSS OR DAMAGE IS CAUSED BY ITS OWN NEGLIGENCE OR FAULT AND EVEN IF SELLER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. Seller does not represent that the Products it manufactures or sells may not be compromised or circumvented, that its Products will prevent any personal injury or property loss by burglary, robbery, fire or otherwise, or that Products will in all cases provide adequate warning or protection. Buyer understands and will cause its customers to understand that a properly installed and maintained alarm may only reduce the risk of burglary, robbery or fire without warning, but it is not insurance or a guarantee that such will not occur or will not cause or lead to personal injury or property loss. CONSEQUENTLY, NEITHER SELLER NOR ITS AFFILIATES BE LIABILE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON ANY CLAIM AT ALL INCLUDING A CLAIM THE PRODUCT FAILED TO GIVE WARNING. HOWEVER, IF SELLER OR ITS AFFILIATES ARE HELD LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE WITH RESPECT TO THE PRODUCTS IT SELLS, REGARDLESS OF CAUSE OF ORIGIN, THE MAXIMUM LIABILITY SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT UNDER THE SPECIFIC ORDER, WHICH SHALL BE FIXED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY AND SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST SELLER OR ITS AFFILIATES.
Buyer agrees to limit liability to its customers to the fullest extent permitted by law. Buyer acknowledges that Seller only gives consumers of its Products those statutory warranties as may be required by law, and at no time shall Buyer represent to its customers or users of Seller’s Products that Seller provides any additional warranties (except as may be specifically provided for Products manufactured by Seller). By accepting the Products, to the fullest extent permitted by law, Buyer assumes all liability for, and agrees to indemnify and hold Seller harmless against and defend Seller from, any and all suits, claims, demands, causes of action and judgments, or relating damages, whether for personal injury or personal property, suffered by any person, firm, corporation, business association, Buyer customer or end user due to (a) any failure of the Products to detect and/or warn of the danger for which the Products were designed, or any other failure of the Products, (b) Buyer's negligence or willful misconduct, (c) Buyer's failure to comply with applicable law, or (d) any false or misleading statements about the Products or uses not intended or approved by the manufacturer of the Products, whether or not such damages are caused or contributed to by the sole or joint concurring negligence of Seller.
Buyer represents and warrants to Seller that: (a) Buyer will not export or ship any Products outside of the Territory; (b) Buyer will not make false or misleading representations, or otherwise make any disparaging statement, about Seller or any product; (c) Buyer will make no representation with respect to the specifications or features of the Products except as previously approved in writing or published by Seller or its manufacturers; (d) Buyer will promptly advise Seller of any material complaints, or claims about Seller or the Products by customers or other persons; (e) to the extent applicable, Buyer is collecting and processing personal data only after obtaining written permission to do so and in line with its agreement with customers or otherwise in accordance with clear instructions from the person about whom the information is collected and in accordance with applicable laws and regulations; and (f) in the event Buyer purchases Snap One Products, Buyer will comply with the relevant Dealer Program Policies.
Seller's IP Rights. The license granted under these Terms does not constitute a transfer, sale or conveyance of any ownership interest in any of Seller’s intellectual property, the rights of any third party IP licensed or otherwise distributed by Seller, or any other proprietary rights, including, without limitation, any patents, copyrights, trade secrets, trademarks, trade names and product names or other rights (collectively the “Seller IP”), all of which are owned or licensed by Seller. Any rights not subject to the license herein are expressly reserved by Seller.
Restrictions on Use. Except as provided by these Terms, Buyer shall not use, copy, modify, have modified, license, sublicense, distribute, rent, sell, or circumvent access rights, decompile or reverse engineer any Seller IP, nor shall Buyer create or develop, or attempt to create or develop, any derivative work based in whole or in part on the Seller IP, or facilitate or assist any third party in doing so. Buyer shall promptly notify Seller if Buyer becomes aware of any person or entity that may be infringing or using unlawfully any Seller IP. Buyer shall fully cooperate with all efforts of Seller to protect Company IP. Seller has the sole right to determine whether to take action with respect to any infringement of Seller IP.
Trademark Use. Seller grants Buyer a limited license to use, exhibit and display, reproduce and publish Seller’s name, brands, trade names, trademarks and service marks associated with the Products (the “Seller Marks”) in order to promote and sell the Products. Buyer shall comply with Seller’s trademark usage guidelines available upon request. Buyer shall not directly or indirectly contest or challenge, or do anything inconsistent with, Seller’s exclusive ownership of the Seller Marks. Buyer shall not alter, deface, remove, cover, mutilate or add to the Seller Marks, except that Dealer may attach labels in the local language, and/or inserts or information in Product containers, as required by relevant regulations, if any. Buyer shall not use Seller Marks in Buyer’s company name (or in the company name of any subsidiary For affiliate of Buyer), in any telephone number, Internet domain name or URL, or register or attempt to register in any country any trademark, trade name, domain name, keyword, social or business networking media account or identification name confusingly similar to any Seller Trademark. If notwithstanding the foregoing, Buyer has used or does use any of Seller Marks, in Buyer’s company name (or in the company name of Buyer’s subsidiary or affiliate), or in an internet domain name or URL, then upon written or electronic notice by Seller, Buyer shall promptly change or transfer such names or domains to Seller.
Return for Credit Unused Product. At its option, Seller may accept as a return for credit unused product in its unopened original package and in a condition that could be sold as new providing the product was purchased from Seller no more than thirty (30) days prior to the date of return. Buyer must provide proof of purchase within the preceding thirty (30) days and method of payment. Buyer shall be responsible for any freight on returns and returns of product must be unopened and must include all original instructions and packaging within the original box. Special order items are, at Seller’s option, non-returnable or may be returned subject to a restocking fee. For non-returnable items, no return privileges apply.
Bad out of box: Solely as a convenience to Buyer, provided Buyer’s account is in good standing and in Seller’s sole discretion, any product that is initially defective (bad-out-of-box) may be exchanged for a new product at no charge to Buyer in accordance with the manufacturer’s policy that is being passed along to Buyer by Seller or, at Seller’s option, returned for credit in accordance with the manufacturer’s policy. Manufacturers’ policies may vary. Buyer must provide a copy of the invoice number for the product being returned. Seller may, at Buyer’s cost for freight, take the product and send it to the manufacturer. If the manufacturer determines that the product is not initially defective (bad-out-of-box), or not otherwise new, or its inability to function properly is a result of user damage or abuse, Buyer shall pay Seller all charges relating to the product as well as the replacement product previously given or, if applicable, Seller shall have any credit given to Buyer reversed.
Product for Repair: As a convenience to and on behalf of Buyer, provided Buyer’s account is in good standing and in Seller’s sole discretion, Seller may ship Products for warranty or other service to the manufacturer in which event any repair, shipping or handling costs will be charged to the Buyer.
Confidential Information means any non-public information of a party, such as proprietary technology, trade secrets, know-how, methods of operations, marketing data and sales programs, market studies and trends, financial information, pricing policies, vendor and customer lists, buying patterns, point of sales reports and other information relating to the business, Products, purchases or sales of a party, or any of its suppliers or customers. Buyer acknowledges and agrees that Seller may use Buyer’s Confidential Information to perform its obligations under these terms and conditions as they apply to the current or contemplated business relationship and may disclose such information to persons on a need-to-know basis to perform such obligations, provided such persons are bound by written confidentiality restrictions no less stringent than those contained herein. In compliance with applicable data protection laws and regulations, Seller may use data collected, generated, processed or transmitted by or through Products, or data provided by Buyer regarding the operation or performance of Products, in an aggregated or anonymized form for any business purpose, including product development, marketing or sales support or other analytics. If Buyer does not own such data, Buyer grants Seller (or shall procure for Seller) the right to use and make derivative works from such data for any lawful purpose.
This agreement shall be governed and construed by the laws of the Provence of Ontario and the laws of Canada applicable therein shall govern its validity, performance and construction. The parties agree that the courts of Provence of Ontario, district of Toronto, shall have exclusive jurisdiction over any claims arising out of these Terms and each of the parties hereby irrevocably attorns to the jurisdiction of such courts. The parties agree that application of the Uniform Computer Information Transaction Act and the United Nations Convention on Contracts for the International Sale of Goods 1980, and any successor law to either, is specifically excluded. Buyer shall not bring a legal action under these Terms more than two years after the cause of action arose unless otherwise provided by local law.
Notices. All notices and other communications which are required under these Terms shall be in writing or electronic forms and shall be deemed given if hand-delivered or mailed by either registered or certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. In the case of electronic notices, notices shall be deemed effective upon the date that they were sent. In the case of notices via first-class mail or courier service, notices shall be deemed effective upon the date of receipt. All written notices shall be addressed to ADI at 275 Old Country Road, Melville, NY 11747 Attn: Legal or to Buyer at the address as set forth in Buyer's account with ADI, unless either Party notifies the other of a change of address in accordance with this Section 16, in which case the latest noticed address shall be used. All electronic notices to Buyer from Company shall be sent to the email address as set forth in Buyer's account with ADI. All electronic notices to Seller from Buyer shall be sent to legalnotices@resideo.com. Notices related to Snap One Products shall be as stated on Addendum 1.
Assignment. Neither party will assign any rights or obligations under these Terms without advance written consent of the other Party, which consent will not be unreasonably withheld. Either party may assign these Terms in connection with the sale or transfer of all or substantially all the assets of the business to which they pertain. Any attempt to assign or delegate in violation of this clause will be void.
Relationship of the Parties. The relationship between the Parties shall be that of independent contractors. Nothing herein shall be construed as creating or constituting any agency or employment relationship, partnership or joint development.
Enforceability. If any provision of these Terms is held to be unenforceable by a court of competent jurisdiction, such provision shall be more narrowly and equitably construed so that it becomes legal and enforceable, or if such construction is not possible, then the provision shall be deemed removed and, in either case, the balance of the Terms shall continue in full force and effect.
Compliance with Law. Buyer agrees to comply with all applicable laws and regulations, including, without limitation, obtaining and maintaining all certifications, credentials, authorizations, licenses, permits, safety testing, and all regulatory compliance markings, at Buyer’s own expense.
Compliance with Seller’s Code of Conduct. Without limiting Buyer's obligations to comply with applicable laws and regulations, Buyer shall comply with Seller’s Code of Conduct, locate at www.resideo.com and promptly report to Seller any request or demand that, if complied with, would amount to a breach of either these Terms or Seller’s Code of Conduct.
No Waiver. Any provision of these Terms may be waived by the party entitled to the benefit of such provision. Neither party will be deemed, by any act or omission, to have waived its right or remedies under these Terms unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any other right or remedy, or as to a subsequent event.
Equitable Relief. The parties agree that a breach of Section 12 (IP; Trademarks; Content Provided by Company), Section 13 (Confidential Use and Data Rights), or Section 16 (Compliance with Law), or of any provision of these Terms affecting the ownership of Seller’s intellectual property, or Seller’s proprietary information, shall result in immediate and irreparable harm for which ordinary damages may not be a sufficient remedy. Therefore, the parties agree that in the event of any such breach, Seller may seek equitable relief, including without limitation an injunction, specific performance, or other restraint and/or action, in any court of competent jurisdiction, without the necessity of posting any bond, in addition to any other relief to which Seller may be entitled at law or in equity.
Headings. Section headings used in these Terms are for the purposes of convenience only and shall not affect the legal interpretation of these Terms. Any typos, spelling errors, incorrect or missing words or the like in the Terms do not limit or alter the intent of the Terms in any way and upon identification by either Party, both Parties agree to amend or correct the Terms in writing to represent the original intent.
Survival. The expiration or termination of these Terms shall not terminate vested rights of either party from any liabilities or obligations incurred under these Terms prior to or which by their nature are intended to survive expiration or termination, including but not limited to provisions relating to confidentiality, indemnification, warranties and proprietary rights.
In the event Buyer purchases Snap One Products and services through Ademco III Ltd., doing business as ADI Canada (“ADI”), the following terms (the “Terms”) shall apply and supersede any prior understandings between Dealer and both Snap One, LLC and ADI (together the “Company”):
In addition to the terms provided in Section 11, the following shall apply for Products:
For Products purchased under this Addendum, Buyer shall obtain and maintain at all times adequate insurance as described in the Insurance section of the Dealer Program Policies located at www.snapav.com/shop/en/snapav/insurance. Buyer upon request will supply Company with a certificate of insurance with respect to each of the foregoing policies that names Ademco III Ltd. and Snap One, LLC as additional insureds. Buyer’s insurance will be primary, and Buyer is required to respond to and pay claims prior to other coverage.
All notices and other communications which are required under these Terms shall be in writing or electronic forms and shall be deemed given if hand-delivered or mailed by either registered or certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed.
In the case of electronic notices, notices shall be deemed effective upon the date that they were sent. In the case of notices via first-class mail or courier service, notices shall be deemed effective upon the date of receipt. All written notices shall be addressed to Buyer at the address as set forth on the Dealer Account website, unless either Party notifies the other of a change of address, in which case the latest noticed address shall be used. All electronic notices to Buyer from Company shall be set forth on the Dealer Account website. All electronic notices to Seller from Buyer shall be sent to the email address as designated by Seller from time to time.
Version: August 26, 2024
