Equipment Agreement – Master Terms and Conditions
This Agreement applies to: (a) persons or entities obtaining the OBD Protector (diagnostic port locks) (“Equipment”) directly from Sherlock Antitheft Marking Inc. (“Sherlock”) or (b) through authorized resellers of the Equipment by Sherlock; (each of the foregoing a “Customer”). For purposes hereof, “Agreement” means these Terms and Conditions, and any exhibits or schedules that are referenced herein or signed by the parties.
1. No Additional Rights. The Customer may only use the Equipment in accordance with Sherlock instructions and specifications in effect from time to time, or as otherwise expressly approved by Sherlock in writing as well as any additional terms expressly specified by the authorized reseller at the moment of purchase or otherwise communicated to Customer from time to time. Sherlock reserves all rights not expressly granted under this Agreement. No rights with respect to the Equipment (or any intellectual property rights associated therewith) are granted, or may arise by implication, estoppel or otherwise, except as specifically provided herein. The Customer may not modify, loan, rent, lease, sell, license, sublicense, assign or otherwise transfer, create derivative works of or otherwise modify or tamper with, the Equipment, or perform any act with respect to the Equipment not expressly authorized hereunder, including but not limited to, by applying excessive or non-intended force on the bolts or any other structural component of the Equipment (each of the foregoing, a “Prohibited Act”) without Sherlock’s prior written consent (which may be withheld at Sherlock’s sole discretion), and any attempt to do so will render this Agreement null and void and use of the Equipment unauthorized. The usage or installation of the Equipment on any vehicle from a brand which is part of the General Motors Company (including Chevrolet, Buick, GMC, and Cadillac) is prohibited and shall constitute such Prohibited Act. It is further Customer’s sole and exclusive responsibility to ensure that his or her vehicle is compatible with the Equipment and the particular make and model thereof is supported by Sherlock at the moment of purchase. Customer shall hold Sherlock harmless against any liability, loss or expense, whether direct or indirect, arising out of a Prohibited Act.
2. Loss, Damage or Delay. Sherlock shall not be liable for loss, damage, detention, or delay resulting from causes beyond its reasonable control (“Force Majeure Events”) such as acts of God, national health emergencies, pandemics, fire, flood, explosion, earthquake or other natural forces, war, civil unrest, accident, destruction or other casualty, any act, inaction or delay of any government or government agency, any lack or failure of transportation facilities, any lack or failure of supply of raw materials, any strike or labor disturbance, or any other event similar to those enumerated above. Acceptance of delivery of the Equipment by Customer shall constitute a waiver of all claims for delay.
3. Equipment Operation; Limitation of Use; Indemnification. Customer agrees that all Equipment purchased under these Terms shall be operated in a safe and reasonable manner in accordance with Sherlock’s or the authorized reseller’s written instructions and for the purpose for which the Equipment was intended. Customer may not transfer or resell the Equipment without Sherlock’ prior written approval. Customer agrees to indemnify and hold Sherlock and its affiliates, licensors, resellers and their officers, and directors and employees harmless from and against all claims, demands, actions, causes of action, judgments, and costs including reasonable attorney’s fees, arising out of or in conjunction with the misuse or unintended use of Equipment by Customer or its use with another manufacturer’s equipment.
4. Equipment Warranty. Sherlock warrants that the Equipment shall be free from any defects in materials and workmanship which may appear under proper and normal use within a period of one (1) year from the date of shipment of the Equipment (“Warranty Period”). Customer shall provide prompt written notice to Sherlock of any defect or defects. Customer shall permit Sherlock to have access to the Equipment within a reasonable time after notification of any defect. In the event Customer does not give Sherlock prompt notification of a defect or access to the Equipment within a reasonable time after notification, Sherlock is hereby released from all liability with reference to such defect and subsequent damage, if any, resulting from the inability of Sherlock to correct such defect. In the event of a breach by Sherlock of this warranty during the Warranty Period, Sherlock’s sole and exclusive liability to Customer and Customer’s sole and exclusive remedy shall be limited, at Sherlock’s option, to either (1) the repair or replacement of the Equipment, or (2) a refund of the purchase price paid by Customer for the Equipment (which may be conditioned upon returning the Equipment.) THE FOREGOING SETS FORTH THE SOLE WARRANTY, AND THE SOLE REMEDY FOR ANY BREACH OF WARRANTY, WITH RESPECT TO THE EQUIPMENT AND IS IN LIEU OF ANY AND ALL OTHER REMEDIES. Warranty service will be performed either on-site at the point of sale of the Equipment or at Sherlock’s facilities, as may be determined by Sherlock in its discretion, during Sherlock’s normal weekday business hours, excluding local and national holidays. The Equipment may contain refurbished components, in which case the foregoing warranty will nevertheless apply.
5. Limitations. The warranty set forth in this Agreement does not apply to (1) delays (or failure) in rendering any service herein described; (2) correction of operator problems related to conditions beyond the control of Sherlock; (3) Customer-induced damage, neglect, misuse, tampering or improper operation, unauthorized repair or modification of the Equipment (other than performing the Customer maintenance described in the operator and technical manuals); (4) operation outside of the specifications of the Equipment; (5) physical, electrical, or telecommunications infrastructure external to the Equipment; (6) use of the Equipment in connection with activators, consumables or other items other than those manufactured and distributed by Sherlock; (7) use of the Equipment in a manner that contravenes the instructions provided by Sherlock or outside the specifications therefor; (8) use of the Equipment in a manner for which it was not intended; (9) Equipment which has been moved, repaired or serviced, except by Sherlock-authorized personnel; (10) Force Majeure Events (as defined in Section 2); (11) used equipment unless otherwise expressly stated herein; or (12) any other activity with respect to the Equipment outside the scope of this Agreement. The warranty applies only to the end user who is the original Customer of the Equipment, and only so long as the Equipment is used in the country to which it was originally shipped by Sherlock.
6. Service. Unless agreed to in writing between the parties, no service is included beyond the Warranty Period. Any services beyond the warranty or services specified herein must be under a separate service contract between the parties (the current version of which may be attached hereto as the “Service Terms and Conditions”), and shall be provided at then-current pricing terms.
7. No Resale to Competitors. Customer acknowledges that the Equipment contains technology that is of a proprietary nature to Sherlock or its licensors and that if a Competitor (as defined below) obtains any internal specifications that are embedded in the Equipment, Sherlock or its licensors could suffer substantial economic prejudice. To prevent such economic prejudice, Customer agrees not to sell, assign, lease, or otherwise transfer the Equipment to a Competitor without Sherlock’s written consent. The term “Competitor” shall mean any person or entity that engages in, or owns or controls a significant interest in any entity that sells, distributes or manufacturers any equipment or products for use in connection with the prevention of vehicle theft.
8. Specific Disclaimer. SHERLOCK MAKES NO SPECIFIC REPRESENTATION OR WARRANTY THAT THE EQUIPMENT WILL ACTUALLY AND IN ALL CASES PREVENT THEFT OR IN ALL CASES PREVENT ACCESS TO THE VEHICLE’S OBD PORT AND GUARANTEE OR PREVENT A VEHICLE FROM BEING STOLEN, DAMAGED OR OTHERWISE TAMPERED WITH. THE EQUIPMENT IS ONLY INTENDED TO SECURE A VEHICLE’S OBD PORT TO ADD AN ADDITIONAL LAYER OF PROTECTION TO DETER THEFT. SHERLOCK SHALL IN NO EVENT BE HELD LIABLE FOR THEFT, DAMAGE OR LOSS OF A CUSTOMER’S VEHICLE WITH RESPECT TO THE USE OR RELIANCE ON THE EQUIPMENT BY CUSTOMER.
9. General Disclaimer. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ITS GROSS FAULT, WILLFUL MISCONDUCT OR BREACH OF AN ESSENTIAL OBLIGATION OF THE AGREEMENT, NEITHER SHERLOCK NOR ITS LICENSORS, AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS, SHALL BE LIABLE UNDER THIS AGREEMENT AND UNDER ANY LEGAL THEORY FOR ANY LOST REVENUES, PROFITS OR LOSS OF CLIENTS OR EXPECTED CLIENTS, DAMAGES FOR BUSINESS INTERRUPTION OR FAILURE TO REALIZE EXPECTED SAVINGS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA AND ANY OTHER INCIDENTAL COMMERCIAL OR FINANCIAL LOSSES OF ANY KIND OR DAMAGES THAT ARE NOT THE DIRECT AND IMMEDIATE CONSEQUENCE OF ITS ACTIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, RELIANCE ON, THE EQUIPMENT FOR ANY PURPOSE WHATSOEVER.
10. Legal Interpretation and Enforcement. This Agreement shall be construed and enforced in accordance with the laws of the Province of Québec, Canada without regard to any principles regarding choice or conflict of laws. The parties attorn to the jurisdiction of Québec and these Terms of Use, and any disputes related thereto or matters arising therefrom or associated therewith (whether contractual or otherwise), shall be governed by and interpreted in accordance with the laws of the province of Québec and the laws of Canada applicable therein.
11. Assignment. Customer may not assign any right or delegate any obligation under this Agreement, or transfer this Agreement, without the prior written consent of Sherlock. Sherlock may assign this Agreement to any a subsidiary or affiliate of Sherlock Antitheft Marking Inc. without Customer’s consent.
12. Entire Agreement. This Agreement contains the entire understanding between Sherlock and the Customer and supersedes all prior understandings, written or oral regarding the subject matter of this Agreement. The terms of this Agreement will prevail in the event of any inconsistency between this Agreement and any terms and conditions set out in an invoice for sale of the Equipment provided by a reseller.
13. Severability. If any provision of this Agreement is found to be unenforceable, it will not affect the validity of the remainder of this Agreement, which shall remain valid and enforceable according to its terms.
14. Amendments. No modifications to this Agreement shall be binding unless agreed to in writing and signed by both Customer and Sherlock.
15. Language. The parties agree that this Agreement and all other documents associated thereto and all communications will be in English. Les parties aux présentes conviennent à ce que cette entente ainsi que tous les autres documents et communications y étant afférents soient rédigés en anglais.