Terms of Sale
Last updated: Nov 2015
Please review these Terms of Sale carefully as these terms govern your purchase of the products in your order (the “System”) from Ismartsafe, Inc. (“Ismartsafe”) and set out your rights and obligations with respect to your purchases, including important limitations and exclusions, such as those contained in our product warranties. These are the Terms of Sale under which we are willing to provide you with the System. Please be certain you understand them.
By clicking the “Submit” button below or using the System, you agree that you have read these Terms of Sale and are legally bound by these Terms of Sale, including the disclaimers, limitations of liability and indemnity obligations below. You may print these Terms of Sale by clicking the print button on your Internet browser.
U.S. Sales Only
Purchases from ismartsafe are available only in the United States. You agree not to use or attempt to use any ismartsafe product or service from outside of the United States for any illegal or unlawful purpose.
Ismartsafe accepts credit cards, debit cards and paypal as forms of payment. If a credit card is being used for a transaction, ismartsafe may obtain a pre-approval from the credit card company for an amount up to the amount of the order. Billing to your credit card occurs at the time of purchase or when the order is shipped. We are unable to accept credit cards issued by banks outside of the United States. Debit cards and check cards have daily spending limits that may prevent the processing of your order.
Your total price will include the price of the products in your order plus any applicable sales tax and shipping charges, less any discounts offered. Ismartsafe reserves the right to change prices for products offered at any time, and does not provide price protection or refunds in the event of a price drop or promotional offering. In the event a product is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit or debit card account in the amount of the incorrect price.
Ismartsafe website transactions will include sales tax based on the delivery address and the sales tax rate in effect at the time your transaction is completed. If the sales tax rate for the state to which your order is being shipped changes before the product is shipped, the rate in effect at the time your order was received will apply. You are responsible for all applicable sales taxes, and ismartsafe has the right to collect any tax it believes it is obligated to collect.
Delivery will be by common carrier F.O.B ismartsafe’s shipping point. You assume sole risk of loss or destruction to the system during shipment.
Ismartsafe warrants to you that the System will be free from defects in materials and workmanship under normal use and service for 1 year from the date that you purchase the product. Ismartsafe’s sole obligations shall be limited within the warranty period to accepting return of the defective product or part and delivering to you an equivalent product or part to replace the defective item. Replacement products may be new or reconditioned, at the sole option of ismartsafe.
ismartsafe warrants the ismartsafe hardware (the “Product”), and only the Product, against defects in materials and workmanship under normal use for a period of one year from the date of purchase by the original purchaser (“Warranty Period”). Under this Limited Warranty, if a defect arises and a valid claim is received by ismartsafe within the Warranty Period regarding the Product, at its option and to the extent permitted by law, ismartsafe will either (1) repair the Product, using new or refurbished replacement parts or (2) exchange the Product with a new or refurbished Product.
The warranty for the replacement Product or part assumes the original Product warranty date, or one-year from the date of replacement or repair, whichever is longer.
When a Product is exchanged, any replacement item becomes your property and the replaced item becomes ismartsafe’s property. Product must be freight prepaid, in its original packaging, to the specified address with proof of purchase to receive warranty service.
Exclusions and Limitations. This Limited Warranty applies only to the Product manufactured by or for ismartsafe that can be identified by the “ismartsafe” trademark, trade name, or logo affixed to it and with the approval receipt from ismartsafe.com. The Limited Warranty does not apply to any (a) ismartsafe products and services other than the Product, (b) non-ismartsafe hardware product, (c) consumables (such as batteries), or (d) software, even if packaged or sold with the Product or embedded in the Product.
This Limited Warranty does not apply in the following cases: failure to follow installation or operating instructions, misuse, alteration, abuse, accident or tampering, or damage or non-performance resulting from use of any item not provided by ismartsafe.
No ismartsafe reseller, agent, or employee is authorized to make any modification, extension, or addition to this Limited Warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired. Please refer to ismartsafe’s Terms & Conditions for more information on Limited Warranty.
THIS LIMITED WARRANTY IS EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. IN NO CASE SHALL ISMARTSAFE OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS, AGENTS OR REPRESENTATIVES (EACH, A “ISMARTSAFE PARTY” AND COLLECTIVELY, THE “ISMARTSAFE PARTIES”) BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF THIS WARRANTY OR ANY OTHER WARRANTIES WHATSOEVER.
Ismartsafe does not represent that the System may not be compromised or circumvented; that the System will prevent any personal injury or property loss; or that the System will in all cases provide adequate warning or protection.
CONSEQUENTLY, NO ISMARTSAFE PARTY, AS DEFINED ABOVE, SHALL HAVE ANY LIABILITY FOR ANY LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, “LOSSES”), INCLUDING ANY PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY A CLAIM THE SYSTEM FAILED TO GIVE WARNING. HOWEVER, IF ANY ISMARTSAFE PARTY, AS DEFINED ABOVE, IS HELD LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY LOSS ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY THIS LIMITED WARRANTY OR OTHERWISE, THE AGGREGATE LIABILITY OF ALL ISMARTSAFE PARTIES, AS DEFINED ABOVE, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SYSTEM, WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST THE ISMARTSAFE PARTIES, AS DEFINED ABOVE. YOU ACKNOWLEDGE AND AGREE THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE OF THE SYSTEM TO GIVE WARNING. THIS AGREED-UPON AMOUNT (THE PURCHASE PRICE OF THE SYSTEM) IS NOT A PENALTY, AND IS THE SOLE REMEDY.
By purchasing from ismartsafe, you acknowledge that you have had an opportunity to review ismartsafe’s warranty terms, have done so to the degree you feel you need to be familiar with them, and you accept their terms and conditions, including the limitations, exclusions, and disclaimers. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
THE PRICE OF THE SYSTEM IS UNRELATED TO THE VALUE OF PROPERTY LOCATED ON OR NEAR THE PREMISES AT WHICH THE SYSTEM IS LOCATED. NO PORTION OF THE PURCHASE PRICE IS FOR INSURANCE OR SHALL BE DEEMED OR CONSIDERED INSURANCE PREMIUMS. YOU ACKNOWLEDGE AND AGREE THAT ISMARTSAFE IS NOT AN INSURER. YOU SHALL MAINTAIN INSURANCE COVERING ALL LOSSES, AS DEFINED ABOVE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THESE TERMS OF SALE, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER (II) THE SYSTEM, (III) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE, (IV) THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM, (V) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT (VI) BREACH OF WARRANTY, EXPRESS OR IMPLIED, (VII) PRODUCT OR STRICT LIABILITY (VIII) LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL TO OR RECEIVE SIGNALS AT ANY MONITORING FACILITY OR (X) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION (COLLECTIVELY, THE “COVERED CLAIMS”). RECOVERY FOR ANY LOSS, AS DEFINED ABOVE, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY.
LIMITATIONS OF LIABILITY AND RELEASE
Ismartsafe does not accept liability for products purchased hereunder beyond the remedies set forth herein and in Ismartsafe’s limited warranty. In particular, as described in Ismartsafe’s limited warranty, Ismartsafe does not represent that the System may not be compromised or circumvented; that the System will prevent any personal injury or property loss; or that the System will in all cases provide adequate warning or protection. Customer understands that a properly installed and maintained alarm may only reduce the risk of a burglary, robbery or other events occurring without providing an alarm, but it is not an insurance or a guarantee that such will not occur or that there will be no personal injury or property loss as a result.
BY AGREEING TO THESE TERMS, YOU ARE RELEASING EACH ISMARTSAFE PARTY, AS DEFINED ABOVE, ON YOUR BEHALF AND ON BEHALF OF ALL OTHERS WHO MAKE CLAIMS UNDER THE TERMS OF SALE FROM ALL LOSSES, AS DEFINED ABOVE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE. UNDER NO CIRCUMSTANCES WILL ANY ISMARTSAFE PARTY, AS DEFINED ABOVE, BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO PROPERTY. NOTWITHSTANDING THE FOREGOING, EVEN IF A ISMARTSAFE PARTY, AS DEFINED ABOVE, IS FOUND LIABLE FOR ANY LOSSES, AS DEFINED ABOVE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE, ANY SUCH LIABILITY IN THE AGGREGATE OF ALL ISMARTSAFE PARTIES, AS DEFINED ABOVE, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SYSTEM, WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST ALL ISMARTSAFE PARTIES, AS DEFINED ABOVE. IF YOU WISH TO INCREASE THE MAXIMUM AMOUNT OF SUCH LIMITED LIABILITY, YOU MAY OBTAIN A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT PURSUANT TO A SEPARATE WRITTEN AGREEMENT AGREED UPON BETWEEN YOU AND ISMARTSAFE IN WRITING, BUT ISMARTSAFE SHALL NOT BE HELD TO BE AN INSURER HEREUNDER.
Release of Insured Losses; Waiver of Subrogation
You release all ismartsafe Parties for all Losses covered by your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights you or your insurance company may have against any ismartsafe Party for money paid to you or on your behalf.
IF ANYONE OTHER THAN YOU (INCLUDING YOUR INSURANCE COMPANY) ASKS ANY ISMARTSAFE PARTY, AS DEFINED ABOVE, TO PAY FOR ANY LOSSES, AS DEFINED ABOVE, INCLUDING ATTORNEYS’ FEES ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED ABOVE, YOU SHALL INDEMNIFY, DEFEND AND HOLD EACH ISMARTSAFE PARTY, AS DEFINED ABOVE, HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES, AS DEFINED ABOVE, INCLUDING ATTORNEYS’ FEES, ASSERTED AGAINST OR INCURRED BY SUCH PARTIES.
Software embedded within any ismartsafe product is licensed to you under this section on a non-exclusive and limited basis, and not sold. You may use such software only in connection with the product in which it is embedded, and may not modify, distribute, copy or reverse engineer such software. All rights with respect to such software not licensed to you hereunder are fully reserved by ismartsafe and/or its licensors.
If the System includes any camera or any other video-related equipment (collectively, the “Camera”), then with respect to the Camera, you acknowledge, understand and agree that (i) the Camera is intended to assist you, Ismartsafe and the monitoring facility in the verification of alarm events at your premises, not to reduce or eliminate any risk of loss, (ii) the Camera is not intended to detect or prevent unauthorized intrusion onto the premises or any other emergency condition, including fire, smoke, carbon monoxide, medical emergencies or water damage, (iii) you will use the Camera solely for verification of alarm events at your premises and no other purpose, (iv) you shall not use the Camera, or permit the use of the Camera, for any illegal or unlawful purpose, (v) you shall not use or permit the use of a Camera installed with a view where any person may have a reasonable expectation of privacy, including restrooms, dressing or changing areas, locker rooms or similar areas, (vi) you shall instruct all persons who may use the Camera of any limitations with respect to the Camera, (vii) you shall notify any person whose oral communication may be intercepted, recorded or transmitted by the Camera of any such interception, recording or transmission, and (viii) YOU SHALL NOT INTERCEPT, RECORD OR TRANSMIT ANY ORAL COMMUNICATION OF ANY PERSON WITHOUT HAVING SUCH PERSON’S PERMISSION TO DO SO.
Life Safety Notice
If you purchase a System that includes smoke detectors or carbon monoxide detectors, or if you add smoke detectors or carbon monoxide detectors at a later time, there may be specific requirements or standards for the installation and location of such detectors. Contact your local authority having jurisdiction or consult a qualified professional to assist in the installation, maintenance and location of such detectors.
Other Terms and Conditions
Ismartsafe reserves the right to change the Terms of Sale at any time. Customers are encouraged to review the Terms of Sale on a periodic basis for modifications. All changes or amendments to the Terms of Sale by you must be in writing and signed by all parties to be binding on the parties.
All transactions on the ismartsafe website are governed by Texas law without reference to its conflicts of law rules. The interpretation of the Terms of Sale shall not be construed against the drafter.
EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR IN CONNECTION WITH OR DUE TO THE TERMS OF SALE SHALL BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF RECORD OR THE COURTS OF THE UNITED STATES LOCATED IN BOSTON, MASSACHUSETTS. EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT. EACH PARTY CONSENTS TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS BELOW. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING BROUGHT BY EITHER PARTY.
Ismartsafe will not be liable for any failure to discharge its obligations under the Terms of Sale due to strikes, accidents, fires, or shutdowns of its manufacturing plant or plants supplying it or other contingencies beyond the control of ismartsafe, including those arising out of or in connection with, due to, or caused in whole or in part by emergency conditions.
All claims, actions or proceedings against ismartsafe must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action or proceeding is barred. The time period in this paragraph must be complied with strictly.
Unless otherwise expressly provided herein, (i) all notices required to be given to ismartsafe shall be deemed to have been duly given if in writing and mailed by regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight delivery service to ismartsafe’s then current principal place of business and (ii) all notices required to be given to Subscriber shall be deemed to have been duly given if in writing and sent to the e-mail address Subscriber provided to ismartsafe.
Should any provision of the Terms of Sale (or portion of the Terms of Sale), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and the Terms of Sale, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing. When used in these Terms of Sale, the word “including” shall mean “including, but not limited to.”