Koben Systems Inc. Terms and Conditions of Sale

(Last Updated: January 2, 2021)

Your purchase of products (“Products”) from this website constitutes your agreement to be bound by the following terms and conditions (the “Terms & Conditions”) and any additional terms we provide. Additional terms include, but are not limited to, the (1) GENIUS Panel Limited Warranty (the “GENIUSQ Limited Warranty”), which is available here and (2) KOBEN Privacy Policy, which is available here. The terms of the KOBEN Privacy Policy apply to information collected from you unless diﬀerent terms are specified as part of a special oﬀer or in another form or contract we provide you. Please read these Terms & Conditions carefully prior to purchasing or using the Products. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions. If you do not agree with these Terms & Conditions, please do not purchase or use the Products.

We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time prior to making a purchase from KOBEN Systems Inc.. Every time you order Products from KOBEN, the Terms & Conditions in force at that time will apply between you and KOBEN. If you have any questions regarding these Terms & Conditions, you can contact KOBEN at info@kobensystems.com.

1. Acceptance

THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND KOBEN. BY PLACING AN ORDER OR PURCHASING PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND TO ENTER INTO THIS AGREEMENT.

2. Payment

By providing a credit card or other payment method accepted by KOBEN, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or canceled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your KOBEN account, you can do so at any time by logging into your account and editing your payment information.

Failure to pay the amount of your order to KOBEN (excluding amounts disputed in good faith) for 60 days or more from the invoice due date may result in your account being suspended and will not relieve you of the obligation to pay amounts due to KOBEN.

Full Payment is due upon signing the purchase agreement. Full payment, including shipping costs and sales tax, is due prior to shipment. Installation is considered complete once the Products are registered on GENIUSQ’s servers.

3. Cancellation

YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.

To cancel your order, reply to your KOBEN GENIUSQ confirmation order email with the written message “Cancel”.

GENIUSQ reserves the right to cancel the order. All sales are FINAL SALE.

4. Availability and Pricing

All Products oﬀered on the Website are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue oﬀering Products without prior notice. Prices for the Products are subject to change at any time, but changes will not aﬀect any order for Products you have already placed.

5. Title

Title to the Products shall pass to you upon delivery. KOBEN and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.

6. Sales Tax

KOBEN calculates and charges sales tax in accordance with applicable laws.

7. Resale

Purchases made of the Product made on the website are intended for end users only and are not authorized for resale unless prior agreements are entered into with reseller and KOBEN.

8. Installation

Installation of your Products will be performed solely by an independent licensed installer previously certified in writing by KOBEN. KOBEN will not perform any portion of the installation. Installers arranged by KOBEN are neither KOBEN employees nor are they affiliated with KOBEN.

You must ensure that you have all necessary consents before installation, including, but not limited to the permission of a landlord or property owner, as applicable. Neither KOBEN nor the installer will be liable for your failure to obtain any necessary permission or consent. KOBEN is not responsible for any injury or damage caused by self-installation and will void all Warranty.

9. Limited Warranty

KOBEN will provide the GENIUSQ Limited Warranty, which is available here. The GENIUSQ Limited Warranty shall be the sole and exclusive remedy for all claims based on failure of or defects in the Products.

The independent licensed installer will provide a workmanship warranty covering the installation.

EXCEPT FOR THE GENIUSQ LIMITED WARRANTY, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, KOBEN HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, REGARDING ANY SUBJECT MATTER OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, GENIUSQ SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR SUFFICIENCY FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT OR TITLE, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. FURTHER, KOBEN DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT THE PRODUCTS OR THE APPLICATION WILL OPERATE IN COMBINATION WITH ANY MATERIAL OR PRODUCTS NOT PROVIDED BY KOBEN, WILL BE FREE FROM BUGS, OR THAT ANY ERRORS WILL BE OR CAN BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSONNEL OF KOBEN OR AN INSTALLER SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE GENIUSQ LIMITED WARRANTY.

10. Limitation of Liability

Nothing in these Terms & Conditions and in particular within this “Limitation of Liability” section shall attempt to exclude or limit liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) KOBEN BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF KOBEN KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) KOBEN’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, INSTALLATION OF THE PRODUCTS OR THE APPLICATION, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO KOBEN FOR THE PRODUCT. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. KOBEN DISCLAIMS ALL LIABILITY OF ANY KIND OF KOBEN’S LICENSORS, SUPPLIERS AND INSTALLERS.

11. Intellectual Property Ownership

KOBEN and its licensors retain all rights, title and interest in and to, including all patent rights, trademarks, service marks, trade names, trade dresses, copyrights, mask work rights, and trade secret rights, and any and all other intellectual property and industrial property rights embodied in or associated with, the Products and the Application, and all enhancements, improvements, modifications and derivative works thereof. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are reserved by KOBEN. Notwithstanding anything herein to the contrary, KOBEN may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights in any court of competent jurisdiction.

12. Data Protection

Please see our Privacy Policy, available here for more information on how the data we collect from you and how we use and share that data. We will collect, use and disclose your personal information as set out in that Privacy Statement and you hereby consent to us doing so.

KOBEN is not responsible for any information provided by you to third parties, including devices that provide third party control, including, without limitation, utility and smart energy programs. You assume all privacy, security and other risks associated with providing personally identifiable information to third parties. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.

13. Force Majeure

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

14. Breach

If you are in breach of this Agreement, upon seven (7) days prior written notice, KOBEN may pursue any remedy it has under this Agreement or at law, including termination, suspension of performance, repossession of the Products (if title has not yet transferred) and collection of all amounts due.

15. Severability

If any part of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms & Conditions will remain in full force and eﬀect.

16. Survival

Provisions that, by their nature, should survive termination of these Terms & Conditions shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us, any limitations on our liability and terms regarding disputes between us.

17. Entire Agreement

This Agreement represents the entire understanding relating to your purchase or use of the Products and prevails over any prior or contemporaneous, conflicting or additional communications between you and KOBEN. All rights not expressly granted herein are reserved by KOBEN.

18. Waiver

Failure or delay by us to enforce any of these Terms & Conditions will not constitute a waiver of our rights against you and does not aﬀect our right to require future performance thereof.

19. Headings

Headings and captions are for convenience only and are not to be used in the interpretation of these Terms & Conditions.

20. Electronic Communications

You are communicating with KOBEN electronically when you use KOBEN’s website or send email to KOBEN. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order on KOBEN’s website, we collect and store your email address. From that point forward, your email address is used to send you information about KOBEN’s products and services unless you opt-out of such emails using the opt-out link in the emails.

21. Assignment

You may not transfer or assign these Terms & Conditions without the prior written consent of KOBEN. KOBEN may assign these Terms & Conditions without your consent.

22. Governing Law

These Terms & Conditions are governed by the laws of the State of Delaware without giving eﬀect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the Province and Federal courts in or for the Province of Ontario for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in Section 23 below.

23. Dispute Resolution

All disputes of any nature arising out of or in connection with this Agreement shall be brought in the Province or Federal Courts of competent jurisdiction located in Ontario. Each Party submits to the exclusive jurisdiction of such courts and waives any objection to the proper venue of such courts.

(a) Informal Resolution

If you have any dispute with KOBEN or any related third party, arising out of, relating to, or connected with the Products, you agree to contact KOBEN at support@kobensystems.com; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give KOBEN thirty (30) days within which to resolve the dispute to your satisfaction. If the parties do not reach an agreed upon solution within thirty (30), then either party may initiate binding arbitration as the sole means to resolve claims, in accordance with the provisions set forth below.

(b) Binding

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. YOU AND KOBEN AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES AND/OR PRODUCTS, TO THIS AGREEMENT, OR TO THE CONTENT, ANY RELATIONSHIP BETWEEN US AND/OR ANY RECORDING ON THE SERVICES AND/OR PRODUCTS SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, except that (1) you may assert claims in small claims court in your county of residence within the Province of Ontario if your claims qualify; and (2) this agreement to arbitrate does not include your or KOBEN’s right to seek injunctive or other equitable relief in the Province or Federal Court in Ontario to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration Act, 1991, S.O. 1991, c. 17, apply to this Agreement and govern all questions as to whether a dispute is subject to arbitration.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms & Conditions.

Before initiating an arbitration, you and KOBEN each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute should be sent to KOBEN’s address, which is currently: 2085 Amherst Heights Drive, Unit 613, Burlington, Ontario L7P 5C2 Attention: Legal Department. We will provide a Notice of Dispute to you via the email address associated with your KOBEN account.

IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE OUR RIGHT TO A JURY TRIAL. YOU THEREFORE UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND GENIUSQ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION FOR ANY CLAIMS COVERED BY THIS AGREEMENT.

24. Notices

KOBEN may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your KOBEN account, hard copy, or posting of such notice on the KOBEN website. KOBEN is not responsible for any automatic filtering you or your network provider may apply to email notifications. KOBEN recommends that you add @kobensystems.com URLs to your email address book to help ensure you receive email notifications from KOBEN.

Contact Us

If you have any questions about these Terms & Conditions or otherwise need to contact KOBEN for any reason, you can reach us at support@kobensystems.com.