Terms and Conditions to the Smart Cocoon Agreement

The sales of any equipment (the “Equipment”) its installation, and the provisions of any services relating thereto (including but not limited to the use of Smart Cocoon API which allows the control of Equipment over a network) (the “Services”) are provided by 2511998 Ontario Inc., d.b.a. Smart Cocoon, (“Smart Cocoon”) and are subject to the terms and conditions set forth herein and the Customer whose name appears on the first page (the “Customer”) agrees as follows, whether signed by the Customer themselves or by an agent on their behalf:

1. Smart Cocoon and its contractors, agents, distributors and dealers agrees to provide the Services and/or to install the Equipment only as described in this Agreement at the Customer's installation location stated in this Agreement. Smart Cocoon shall provide and install the Equipment detailed in this Agreement, and ownership of the Equipment shall at pass to the Customer upon payment except during a trial period is offered or where the Customer has chosen to rent the Equipment, in which cases ownership shall remain with Smart Cocoon. While in most cases the Equipment is new, to the extent notices is give to the Customer some of the Equipment installed at the Customer's location may have been previously used or may be reconditioned.
2. If the Equipment is being paid by the Customer over a period of time (e.g. financed by Smart Cocoon or rented by the Customer from Smart Cocoon), in addition to any other remedies herein, Smart Cocoon may remove or, with or without notice to the customer, disable and/or abandon in whole or in part, the Equipment upon failure to pay or termination of this Agreement, or any portion thereof without obligation to repair or redecorate any portion of Customer’s location. The modification, removal, disablement or abandonment of the Equipment shall not constitute a waiver of Smart Cocoon’s right to collect any charges accrued hereunder. Failure to pay any amounts due hereunder shall permit Smart Cocoon to terminate any Services which can render the Equipment inaccessible over a network. Upon payment in full for the Equipment, purchase charges shall cease, however, any and all Service charges, if applicable, shall continue. Smart Cocoon’s Equipment may not be monitored or serviced by any source or provider other than Smart Cocoon.
3. The Customer agrees that all charges are payable in advance and that the Customer agrees to pay, in advance, any Equipment and Service fee (plus applicable tax) and any other fees including but not limited to those necessary in the sole opinion of Smart Cocoon to assure the proper operation of the Equipment within ten (10) days of the date of invoice. A late charge as determined by Smart Cocoon and allowed by law may be applied to any payment not received on time within the payment period or billing cycle indicated on Smart Cocoon’s billing statement. This authorization will remain in effect until Smart Cocoon has received written notification from Customer that it is to be terminated as provided herein. BY SIGNING THIS AGREEMENT, THE CUSTOMER AUTHORIZES, UNDERSTANDS AND AGREES THAT SMART COCOON MAY REVIEW CUSTOMER'S CREDIT HISTORY PRIOR TO ENTERING INTO THIS AGREEMENT OR AT ANY OTHER TIME DURING THE TERM OF THIS AGREEMENT FOR PURPOSES OF DETERMINING ELIGIBILITY FOR EXTENSION OF CREDIT OR COLLECTING A DEBT OWNED HEREUNDER.
4. If the Customer is purchasing Services in addition to the Equipment from Smart Cocoon, this Agreement shall be for an indefinite term (the “Term”), however, this Agreement may be terminated by any party on 30 days written notice. Notwithstanding the foregoing, if the Customer is financing the purchase price of the Equipment and/or Services hereunder, it may only terminate this Agreement on full payment of all outstanding fees. In addition to any other remedies provided by law or hereunder, Smart Cocoon may terminate this Agreement (i) upon 10 days written notice to Customer if Customer defaults in its payment obligations under this Agreement, (ii) upon 60 days written notice for any reason, or immediately at Smart Cocoon's option if; (i) Smart Cocoon looses access to its communication networks and channels, or (ii) Customer fails to allow access to the Equipment for repair of the Equipment or to follow any instruction or recommendation of Smart Cocoon. If the Customer defaults in their payment obligations or wishes to terminate agreement prior to term under this Agreement, then Smart Cocoon shall declare all remaining payments under the term of this Agreement immediately due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Customer, and customer shall be responsible for such payments. If the Equipment is not paid in full, the Customer shall allow Smart Cocoon access to the Equipment at all reasonable times for the purpose of removal from the Customer's location upon default.
5. The Customer acknowledges that the full range of available Services and Equipment and all equipment sold to and installed for the Customer, warranties and services, where applicable, have been explained by Smart Cocoon. The Customer further understands that Smart Cocoon offers several levels of protection services and equipment and that the services and incidental equipment described in this Agreement have been chosen by the Customer after considering and balancing the level of features afforded by the various services and their related costs; and that the Customer desires and has contracted for only the Services and Equipment as provided in this Agreement.
6. During the Term of this Agreement and all renewals hereof and only to the extent that the Customer is financing the cost of the Equipment and/or Services or renting them from Smart Cocoon, the Customer will keep the Equipment free and clear of all mortgages. pledges, liens and encumbrances, and Customer will not attempt to remove or sell or transfer any portion of the Equipment.
7. If the Equipment provided or installed pursuant to this Agreement is found, in the sole opinion of Smart Cocoon, to be defective in material or workmanship within one (1) year from the installation date (the “Warranty Period”), such Equipment will be repaired or replaced free of charge by Smart Cocoon. All Equipment only as installed and provided by Smart Cocoon is warranted and Smart Cocoon agrees under this limited warranty to provide labour and materials at no charge to the Customer for whom the Equipment was originally installed during the Warranty Period.
8. THE COSTS OF REPAIR OR REPLACEMENT OF THE EQUIPMENT FOR ALL NON-WARRANTY SERVICE SHALL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER AND THE CUSTOMER AGREES TO PAY ALL REASONABLE CHARGES FOR SUCH SERVICE. The Customer will immediately notify Smart Cocoon of any defect or failure in the operation or functioning of the Equipment.
9. The Customer may obtain repair and warranty service by contacting Smart Cocoon Customer Service as indicated on the front of the Agreement. Smart Cocoon will, as promptly as commercially reasonably practical during normal business hours, attend to the customer’s needs to provide warranty and maintenance service, and to repair or replace the Equipment.
10. Any warranty provided hereunder to the Customer shall not cover: (i) any defect in or failure of the Equipment due to the Customer's negligence, misuse or abuse of the Equipment; (ii) acts of God or third parties; (iii) equipment and service as is required by the change, renovation, or upgrade to the premises, or change to the use or occupancy of the premises; (iv) replacement of batteries; or (v) upgrade to new equipment as may be requested by the Customer.
11. SMART COCOON'S SOLE OBLIGATION, AND CUSTOMER'S SOLE REMEDY UNDER SMART COCOON'S WARRANTY, IS REPAIR OR REPLACEMENT OF THE EQUIPMENT ONLY AS PROVIDED ABOVE.
12. If Customer is renting the Equipment from Smart Cocoon and does not promptly permit the removal of the Equipment upon default or at the end of such lease term, such Customer will have been deemed to have purchased the Equipment at the prevailing published retail price of the individual system components in aggregate. Payment of this amount for the purchase of the Equipment will be due upon the Customer's refusal to surrender the Equipment after Smart Cocoon has exercised reasonable efforts to reclaim the Equipment. The Customer expressly acknowledges that Smart Cocoon is entitled to a payment in full for the purchase of the Equipment after the Agreement is terminated and the Customer refuses to surrender the Equipment. The purchase of the Equipment does not discharge the Customer from any other obligation, including but not limited to payment for the Services, if applicable, provided hereunder.
13. All notices under this Agreement are to be in writing, signed, dated and are to be sent by Canadian mail, postage prepaid: to Smart Cocoon or Customer at the address shown on the front of this Agreement. All changes of address must be in writing. Notices are effective when sent.
14. Smart Cocoon reserves the right to assign this Agreement without notification to the Customer. The Customer may not assign the Customer's rights or obligations under this Agreement without Smart Cocoon's prior written consent.
15. Except where prohibited by law, no suit, claim, or cause of action shall be brought against Smart Cocoon more than two (2) years after the accrual of the cause of action thereof.
16. The Customer hereby and for other parties claiming under Customer, releases and discharges Smart Cocoon from and against all hazards covered by Customer’s insurance, it being expressly agreed and understood that no insurance company or insurer will have right of subrogation against Smart Cocoon.
17. The Customer hereby grants to Smart Cocoon a worldwide, non-sublicensable (except to its affiliates and legal successors), non-transferable and non-assignable (except to its affiliates and legal successors), royalty-free, personal right and license to, during the term, transmit, communicate and distribute data provided by the Equipment and other information submitted to the Service by the Customer (collectively, the “User Information”), on or as part of the Service, by means of any technology, whether now or hereafter known, including via the Smart Cocoon API, in order to make such User Information available to the Customer or its permitted users of the Smart Cocoon application and Service. The Customer hereby grants to Smart Cocoon a worldwide, non-sublicensable (except as to its affiliates and legal successors), non-transferable and non-assignable (except as to its affiliates and legal successors), royalty-free, personal right and license (without warranties of any kind, express or implied), to, during and after the Term, directly and through Smart Cocoon’s agents or contractors, aggregate, perform analytics on, compile, create derivative works from, use, distribute, sub-license, disclose and sell for Smart Cocoon’s own benefit any User Information submitted to the Service by the Customer; provided, that Smart Cocoon may disclose such User Information to third parties only where such User Information: (a) has been rendered anonymous by stripping any information that could reasonably link such User Information back to the Customer, (b) is distributed in such a manner to ensure that the data cannot be reverse-engineered or tracked back to the Customer and (c) is aggregated and co-mingled with data consisting of multiple Users or used in manner to describe the use of the Service generally by Customers.  Except as provided in this Section 17, Smart Cocoon shall not use, and shall prohibit its suppliers and/or licensors (including any service provider) from selling or otherwise providing such User Information to any third party.  For the purposes of this Agreement, the term “affiliate” shall mean, with respect to any person, any other person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such person. Smart Cocoon and the Customer shall comply with the provisions of applicable data protection laws. Smart Cocoon takes the protection of your personal data very seriously and strictly abides by the data protection laws that apply to it. Smart Cocoon collects, processes and uses the User Information for the implementation and processing of the contractual relation with  the Customer and, in particular, for successfully establishing connections over a network.
18. Full access to premises and equipment within the home must be available and provided by the Customer or on behalf of the Customer by an adult at the location, a tenant or employee when Smart Cocoon attends the premises to install the Equipment.
19. Any signature by the Customer or their representative on a completed installation and setup indicates that the Equipment and Service has been reviewed and tested by Customer (or on behalf of the Customer by an adult at the location, an employee or tenant) and the service has been completed to their complete satisfaction. Old part(s) are disposed of unless requested to be given to the Customer.
20. All overdue payments shall bear interest at the rate of 2% per month (24% per annum) on the unpaid balance.
21. The Customer assumes all risk and liability for any loss, damage or injury, including death, to persons or property of the Customer or others arising out of the use or operation of the Equipment or Services provided by Smart Cocoon.
22. The Customer shall defend, indemnify and hold harmless Smart Cocoon, all of their agents, officers, shareholders, and employees from and against any and all losses, liability claims, damages, injuries, demands, actions and causes of action whatsoever, arising out of or related to any loss, damage or injury claimed by persons that may arise from the installation, use, operation of the Equipment or Services, provided that such loss or damage was not caused by the gross negligence and willful misconduct of Smart Cocoon.
23. Customer agrees to pay all costs, expenses, and legal fees incurred by Smart Cocoon in collecting sums due or in enforcing or recovering any damage, losses or claims against the Customer.
24. This Agreement constitutes the entire agreement between the parties; and it shall not be amended, altered or changed except by a written agreement signed by the parties. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
25. This Agreement shall be governed by the laws of the Province of Ontario and the federal laws applicable therein.
26. If any part of this Agreement be declared or held invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity and enforceability of the remainder which shall continue in force and effect and be construed as if this Agreement had been executed without the invalid or unenforceable portion and it is hereby declared the intention of the parties hereto that this Agreement would have been executed without reference to any portion which may, for any reason, be hereafter declared or held invalid or unenforceable.
27. IN NO EVENT SHALL SMART COCOON BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY A BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT SMART COCOON’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING HEREUNDER (WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) SHALL BE LIMITED TO THE LESSER OF (i) $100; AND (ii) THE AMOUNT PAID TO SMART COCOON FOR THE EQUIPMENT IN RESPECT OF WHICH THE CLAIM AROSE.
28. Your Rights under the Consumer Protection Act, 2002. You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period. If the supplier does not make delivery within 30 days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance. If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance.  You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance. In addition, there are other grounds that allow you to cancel this agreement.  You may also have other rights, duties and remedies at law.  For more information, you may contact the Ministry of Consumer and Business Services. To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice.  If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you. If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance). However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier. If the supplier requests in writing repossession of any goods that came into your possession under the agreement, you must return the goods to the supplier’s address, or allow one of the following persons to repossess the goods at your address: (i) the supplier; (ii) a person designated in writing by the supplier. If you cancel this agreement, you must take reasonable care of any goods that came into your possession under the agreement until one of the following happens: (i) The supplier repossesses the goods; (ii) The supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the agreement was cancelled; (iii) You return the goods; or (iv) The supplier directs you in writing to destroy the goods and you do so in accordance with the supplier’s instructions.