Terms of Sale
LAST UPDATED: October 30, 2017.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO THE HARDWARE PRODUCT, INCLUDING ANY EXCHANGED OR REPAIRED HARDWARE (INDIVIDUALLY AND COLLECTIVELY, THE “HARDWARE”), THAT YOU PURCHASED OR RECEIVED FROM PEDAL LOGIC LP dba SMARTPEDAL (“SMARTPEDAL,” “WE” OR “US”) AND TO THE SOFTWARE EMBEDDED IN THAT HARDWARE WHICH YOU LICENSE FROM US (“FIRMWARE” AND, TOGETHER WITH HARDWARE, THE “GOODS”).
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU CANNOT PURCHASE, LICENSE OR USE THE GOODS.
1. TERMS AND CONDITIONS OF SALE ( OR EVALUATION )
The following terms and conditions govern your purchase, evaluation, and/or use of the Goods. By ordering and/or using the Goods, you agree to these Terms and Conditions of Sale and End-User License Agreement (“Terms and Conditions”) between you and us, which may be reviewed at any time at https://smartpedal.com (“Site”). The Terms and Conditions shall supplement and prevail in the event of any conflict with any other third-party terms or conditions, including those associated with a purchase order, whether or not such third-party terms or conditions are signed or otherwise acknowledged by us.
If instead of purchasing you received the Goods as an authorized participant in our evaluation program, you may use the goods for up to six (6) months (“Evaluation Period”) or longer if you need and agreed in writing by us. During the Evaluation Period, the Goods are provided on bailment and all right and title remains with SmartPedal. You agree to return the Goods at the end of the Evaluation Period.
We reserve the right to change these Terms and Conditions at any time. Please review the then-current Terms and Conditions each time prior to making a purchase from us. Every time you order Goods from us, the Terms and Conditions in force at that time will apply between you and us.
2. ORDER ACCEPTANCE POLICY
Until we have received regulatory approval for sales in other countries, we only accept orders for purchases and use within the United States. Payment shall be made by credit card or other electronic means, such as PayPal, or by an approved purchase order signed by an authorized purchasing agent. Your receipt of an electronic or other form of order acknowledgement does not constitute either our acceptance or confirmation of your order or our offer to sell. We reserve the right, without prior notification, to accept or decline your order or limit the order quantity for any reason. For credit card and other electronic payments, such payment is subject to the approval of the financial institution issuing the credit card or otherwise performing the transaction and we shall not be liable in any way if such financial institution refuses to accept or honor the credit card or perform the transaction for any reason. For purchase orders, acceptance is at our sole discretion. Except by special arrangement, we do not accept orders through the Site in excess of $20,000, including taxes and freight charges. Please contact our Sales department if you need to place an order over $20,000. We may require additional verification or information before accepting any order.
3. TYPOGRAPHICAL ERRORS
In the event Goods are listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for such Goods listed. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card or other form of payment has been charged or transacted. If payment has already been made for the purchase and your order is cancelled, we shall immediately issue a credit in the amount of the charge in the same manner in which payment was made.
We cannot guarantee availability of Goods, and Goods shown or listed as available may nonetheless not be available for immediate delivery. We reserve the right, without liability or prior notice, to revise, discontinue, or cease to make available any or all Goods or to cancel any order. If there is any revision, discontinuance, or cessation, we may, in our discretion, cancel your order or ship Goods with functionality and specifications substantially similar to the Goods ordered.
5. SHIPPING AND DELIVERY
Goods ordered via the Site are shipped from our facilities in the United States. We use various courier companies and customs agencies for deliveries. Although we endeavor to ship same day, Order processing can take 1 to 3 business days. Charges and estimated timeframes for shipment by standard and expedited service are shown on the Site. Delivery may be delayed due to causes beyond our control, including, but not limited to, the following: the unavailability or refusal of a person to accept delivery of the shipment; disruptions in the air or ground transportation network (such as weather phenomena); and natural disasters. We are not responsible for any shipping problems and shall not be held liable for any reasonable delay beyond our advertised delivery timeframes.
6. PRE-ORDERS AND BACK ORDERS
Please feel free to order Goods indicated as "Pre-Order" or "Back Ordered", but keep in mind that we will not deliver within typical shipping time-frames; nor can we set expectations of delivery timeframes at the time of order.
Payment for Goods purchased via the Site can be made by credit card or other electronic means indicated on the Site. Credit cards accepted are VISA and MasterCard. All Goods selected will be charged in U.S. dollars. Shipping, handling and taxes will be charged based on the shipping address. We do not accept payment by check or money order for orders placed through the Site.
8. SHIPPING CHARGES AND TAXES
Shipping is your responsibility, unless stated otherwise on the Site at the time of your order. Unless you provide us with a valid and correct tax exemption certificate applicable to the Goods ship-to location at the time of purchase, you will be responsible for sales tax and all other taxes associated with the order, however designated.
9. UPDATES, REVISIONS, AND DISCONTINUATIONS
We may revise and discontinue Hardware at any time without notice to you. We will ship Hardware that has the functionality and performance of the Hardware ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. The parts and assemblies used in building or servicing Hardware are selected from new, equivalent-to-new or reconditioned parts and assemblies. Any future release, update, or other addition to the functionality of the Firmware, if any, provided by us (collectively, “Updates”) will be subject to the Terms and Conditions, unless we state otherwise in writing. If the Goods you purchased/licensed support such functionality, we may provide automatic updates to the Firmware.
10. FIRMWARE LICENSE
You acknowledge that SmartPedal, our licensors and suppliers own all intellectual property rights in the Goods, including patents, copyrights, trademarks, and trade secrets, as well as the data produced or generated by the Goods (“Data”). Conditioned upon your full compliance with the Terms and Conditions, we grant to you a limited, non-transferable, and non-exclusive license (without the right to sublicense) to use the Data and to execute a single copy of the Firmware in executable object code form solely on, and solely for use in conjunction with, the SmartPedal-branded Hardware that you own or control.
11. FIRMWARE RESTRICTIONS
You agree that you will not, and you will not permit others, to: (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Firmware or make the Firmware available to any third party; (b) copy or use the Firmware for any purpose other than as permitted in Section 10 (Firmware License); (c) use any portion of the Firmware on any device or computer other than the Goods that you own or control; (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Firmware; (e) release the results of any performance or functional evaluation of any of the Firmware to any third party without prior written approval of us for each such release; or (f) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Firmware (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact us and provide us with an opportunity to create such changes as are needed for interoperability purposes). You acknowledge that the Firmware contains valuable trade secrets and proprietary information of SmartPedal, that any actual or threatened breach of Sections 10 (Ownership) or 11 (Firmware Restrictions) will constitute immediate, irreparable harm to us for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
12. HARDWARE TITLE; RISK OF LOSS; INSURANCE
If purchased rather than received in bailment through the Evaluation Program, title to Hardware passes from us to you on shipment from our facilities or our third-party manufacturer’s facilities. Other than as described in the Terms and Conditions, by purchasing and/or licensing the Goods you do not obtain any rights in any of SmartPedal's intellectual property including, but not limited to, our Firmware, trademarks, and patents. You are responsible for all losses or damage that occur during shipping. You are advised to purchase your own insurance to cover any losses that may occur during shipping.
13. LIMITED WARRANTY
The terms and conditions of our limited warranty and (if available) extended warranties may be found on our Site and are incorporated herein by reference.
14. WARRANTIES AND DISCLAIMERS
EXCEPT TO THE EXTENT SET FORTH IN SECTION 13 (LIMITED WARRANTY) AND AS PERMITTED BY LAW, SMARTPEDAL PROVIDES THE GOODS ON AN “AS IS” BASIS, AND DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE GOODS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY. SMARTPEDAL DOES NOT WARRANT THAT OPERATION OF THE GOODS WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE GOODS WILL IN EVERY CASE PROCESS ALL DATA CORRECTLY. NO REVISION IN LIMITED WARRANTIES WILL AFFECT GOODS ALREADY ORDERED BY YOU.
IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, TO THE EXTENT PERMITTED BY LAW SMARTPEDAL LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES FOR THE GOODS TO THE DURATION OF ITS EXPRESS LIMITED WARRANTY (SEE SECTION 13 - LIMITED WARRANTY) AND, AT SMARTPEDAL’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED THEREIN.
WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, SMARTPEDAL DOES NOT REPRESENT OR WARRANT ANY SPECIFIC LEVEL OF ENERGY SAVINGS OR MONETARY BENEFIT FROM THE USE OF THE GOODS. ACTUAL ENERGY SAVINGS AND MONETARY BENEFITS VARY WITH FACTORS BEYOND SMARTPEDAL'S CONTROL AND KNOWLEDGE. YOU ARE SOLELY RESPONSIBLE FOR THE COST OF ENERGY CONSUMED BY YOUR VEHICLE. YOU USE THE GOODS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND SMARTPEDAL DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR PERSON, YOUR VEHICLE OR OTHER PERSONS OR PROPERTY, RESULTING FROM YOUR USE OF THE GOODS.
15. LIMITATION OF LIABILITY
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL: (A) SMARTPEDAL, ITS PARTNERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, PARENTS, SUCCESSORS, ASSIGNS, LICENSORS, SUPPLIERS, AND RESELLERS (COLLECTIVELY, “SMARTPEDAL PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR PERSONAL INJURY OR LOST DATA, PROFITS, EQUIPMENT OR PROPERTY, ARISING FROM OR RELATING TO THE GOODS, EVEN IF SMARTPEDAL KNEW OF, SHOULD HAVE KNOWN OF, OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL CUMULATIVE LIABILITY OF THE SMARTPEDAL PARTIES ARISING FROM OR RELATED TO THE GOODS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES, IF ANY, ACTUALLY PAID BY YOU TO SMARTPEDAL OR SMARTPEDAL’S AUTHORIZED RESELLER FOR THE GOODS AT ISSUE IN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION APPLIES NO MATTER HOW MANY GOODS YOU OWN, AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. THE SMARTPEDAL PARTIES DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT USE OF THE GOODS WILL IMPROVE MILEAGE OR REDUCE EMISSIONS OF YOUR VEHICLES. YOU ARE SOLELY RESPONSIBLE FOR ALL FUEL/ENERGY BILLS FOR YOUR VEHICLES.
SOME STATES, COUNTRIES, AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND/OR EXCLUSIONS DESCRIBED ABOVE MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BETWEEN STATES, COUNTRIES, AND JURISDICTIONS. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16. YOUR INDEMNITY TO SMARTPEDAL
To the maximum extent permitted by law, you will indemnify, defend and hold the SmartPedal Parties harmless from any and all claims, demands, causes oP action, debts or liabilities (including reasonable attorneys' fees, expenses and court costs) arising from: (a) your modification or misuse of, and/or addition to, the Goods; (b) your breach of the Terms and Conditions including but not limited to your obligations under Section 20 (Export Compliance); (c) your omissions, misrepresentations, and/or negligence including but not limited to mis-installation of the Goods; or (d) Goods sold by you that cause damage to a third party to the extent such claim is based on: (i) your modification or misuse of, and/or addition to, the Goods; (ii) your breach of the Terms and Conditions; (iii) your omission, misrepresentation, or negligence including but not limited to mis-installation of the Goods; and/or (iv) your failure to abide by all applicable laws, rules, regulations and orders that affect the Goods. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without prior written consent by the legal department of SmartPedal. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
17. DISPUTE RESOLUTION
You and we each agree to attempt to resolve any claim, dispute or controversy between us (including disputes involving any of the SmartPedal Parties) whether in contract, tort or otherwise, arising out of or relating to the Terms and Conditions, advertising by any of the SmartPedal Parties, or any related purchase (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If you and we are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, which can be reviewed at any time at www.adr.org. The arbitration will be conducted before a single arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, selected pursuant to the Commercial Arbitration Rules. The arbitrator shall arbitrate arbitrability. The arbitration hearing shall take place in Contra Costa County, California. The arbitrator shall base its award on the Terms and Conditions and will follow the law and judicial precedents of the State of California and federal law (including the Federal Arbitration Act) as applicable. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Any court of competent jurisdiction may enter judgment upon the arbitration award. The existence or results of any negotiation, mediation or arbitration will be treated as confidential except to the extent necessary to enforce the ruling. Notwithstanding the foregoing, you and we will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Section.
18. CLASS-ACTION WAIVER
You and we each agree that any proceedings to resolve or litigate any dispute between us (including disputes involving any of the SmartPedal Parties), whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor we will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or we act or propose to act in a representative capacity. You and we further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, us, and all parties to any such arbitration or proceeding.
19. GOVERNING LAW
The Terms and Conditions, and any claim, dispute or controversy relating to the Terms and Conditions, are governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction, and by applicable federal law, including the Federal Arbitration Act. Any nonarbitrable Dispute must be brought in a federal or state court located in Contra Costa County, California, or the Northern District of California, and you and we irrevocably submit to the jurisdiction and venue of any such court in any such action or proceeding, except that we may seek injunctive relief in any court having jurisdiction to protect our intellectual property or confidential information.
20. EXPORT COMPLIANCE
The Goods are currently licensed for sale, evaluation and/or use only in the United States. You acknowledge that the Goods sold or licensed under the Terms and Conditions, and the transactions involving these Goods, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the Goods are manufactured and/or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations. Further, under U.S. law, the Goods shipped pursuant to the Terms and Conditions may not be sold, leased or otherwise transferred to restricted countries or utilized by restricted end users or an end user engaged in activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missiles or the support of missile projects, and chemical or biological weapons. You agree not to provide any written regulatory certifications or notifications on behalf of us.
If you are a legal entity or unincorporated association, by purchasing any of our Goods you grant us the right to identify you as a customer (and to use your logo solely for that purpose) on the Site and in our marketing literature without reservation or limitation provided, however, we will not issue a press release identifying you as a customer or otherwise expressly claim an endorsement of our Goods by you without your written permission.
22. FOR U.S. GOVERNMENT END USERS
The Firmware is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Firmware is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
23. GENERAL PROVISIONS
The Terms and Conditions constitute the final, complete, and exclusive agreement between you and us regarding the Goods and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The right and obligations of the Terms and Conditions are personal to you. Any attempt by you to assign, transfer or delegate the Terms and Conditions without the express written permission of us shall be null and void. Except as otherwise provided in this Section, no amendment to the Terms and Conditions is valid unless in a hand-signed writing executed by you and us. If any provision of the Terms and Conditions is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by us will be effective only if in writing. Any waiver or failure by us to enforce any provision of the Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any notice to you may be provided by email to the address that you registered with us. The section headings in the Terms and Conditions are included to help make the agreement easier to read and have no binding effect. You agree that regardless of any statute or law to the contrary, unless otherwise barred by law, any claim or cause of action arising out of or related to your purchase or use of the Goods must be filed within one (1) year after such claim or cause of action arose or is forever barred. Provided, however, that the limitation in the foregoing sentence shall not apply to any claim or cause of action arising out of or related to infringement of our copyright, patent, trademark or other intellectual property rights.
If you have any questions regarding the Terms and Conditions, please contact us through the support link on our Site.