TERMS OF SALES AND SERVICES

The following terms and conditions of service (“Terms of Service”) govern the use of the Services and form part of Agreement, as defined below. If there is any inconsistency between these Terms of Service and any other document forming part of Agreement, these Terms of Service will prevail unless such other document is executed by BK Electronic Design Inc. and specifically provides that it prevails over these Terms of Service.

Please review the entire Agreement. By purchasing Equipment and activating this Service, you acknowledge that you have read, understood, and agree to these Terms of Service.

1 General

 

1.1. BK Electronic Design Inc. established and existing in accordance with the laws of the Province of Ontario, Canada, with its office located at 212 Ashridge Place, city of Mississauga, Ontario, L4Z 1K7, CANADA.

1.2. BK Electronic Design Inc. and its subsidiaries and affiliates (individually and collectively referred to as “PROVIDER” within this Agreement) provide a broad range of services to Customers (further referred to as “SUBSCRIBER” within this Agreement), related, but not limited to:

​• Remote and automatic measurement of fill levels of substances in bins and containers.

​• Granting access to measured fill level and other data on websites hosted by PROVIDER.

​• Providing alarm notification services through different telecommunication channels.

1.3. Capitalized terms not defined elsewhere in these Terms of Service
shall have the following meanings:

  ​• “Agreement” means all of the terms and conditions that govern SUBSCRIBER Services with the PROVIDER, including these Terms of Service and any PROVIDER document(s) describing the services, plans, features, or products SUBSCRIBER have selected, and any policies or other document(s) incorporated by reference.

​• “Equipment” means any device, equipment, or hardware used to access the Services or used in conjunction with the Services, and in the case of Equipment supplied by or through PROVIDER also includes all related documentation.

​• “Service” or “Services” means any product(s) or service(s) that SUBSCRIBER subscribes to or receives from or through the PROVIDER and that is not otherwise subject to a separate written agreement with the PROVIDER, including all related documentation, Equipment, and Software.

​• “Software” means any software used to access the Services or used in conjunction with the Services, and in the case of Software supplied by or through PROVIDER also includes all related documentation.

1.4. SUBSCRIBER has chosen to subscribe to one or more Services. SUBSCRIBER’s order for each Service will be confirmed, and SUBSCRIBER will have entered into a binding contract with PROVIDER with regard to that Service upon the earliest occurrence of one of the following: (1) SUBSCRIBER submits online order, and it is accepted by PROVIDER; (2) SUBSCRIBER’s telephone order is confirmed by PROVIDER by email or other form; or (3) PROVIDER executes an order provided to SUBSCRIBER in hard copy paper form, which is returned to and accepted by PROVIDER.

1.5. By accessing and using any Service, SUBSCRIBER agrees to the terms and conditions contained in the Agreement and SUBSCRIBER further agrees to comply with and use the Service in accordance with the Agreement and all applicable laws. By entering into the Agreement, SUBSCRIBER:

​• Authorize PROVIDER to obtain information about SUBSCRIBER's credit history and agree that PROVIDER may provide information to others about SUBSCRIBER's credit experience with PROVIDER.

​• Accept all provisions of the Agreement, including these Terms of Service.

​• Agree to cause all persons who use Services under SUBSCRIBER Account or with SUBSCRIBER authorization to comply with the Agreement.

​• Acknowledge that the acts or omissions of all persons who use Services under SUBSCRIBER Account or with SUBSCRIBER authorization will be treated for all purposes as SUBSCRIBER acts or omissions.

​• Acknowledge that SUBSCRIBER has received and had the opportunity to review a copy of the Agreement, including these Terms of Service.

​• Confirm that the information SUBSCRIBER has provided to PROVIDER is up-to-date and accurate.

​• Agree to promptly notify PROVIDER of any change in SUBSCRIBER information.

2 Service Availability And Equipment Installation

2.1. Each Service is available only in those areas to which the network of PROVIDER and the networks of Carriers employed by the PROVIDER to provide the Service extend and where the Service has actually been rolled out by PROVIDER. Service availability is also subject to the availability of appropriate facilities and is dependent on the availability of suitable technology at the location(s) at which SUBSCRIBER wishes to obtain the Service.

2.2 It is the responsibility of SUBSCRIBER to make sure that service is available at the locations of intended Equipment installation. SUBSCRIBER is responsible for installation of Equipment supplied by PROVIDER into its own bins and containers.

2.3. SUBSCRIBER is responsible for any telecommunication services and equipment (including but not limited to internet access fee, computers, smartphones, tablets, telecommunication network, etc.), required to access data web portal, hosted by PROVIDER on publicly available internet domains.

3 Subscription Fee

3.1. SUBSCRIBER agrees to pay a monthly subscription fee for each purchased license, which is normally associated with every purchased Equipment, sensor, device, tag, identification label, internet domain, or subdomain, data access web portal etc., as specified in Schedules, attached hereto.

3.2. The subscription fee is not prorated based on actual usage or the number of days in a month. Full one month's fee is invoiced for each license per month.

4 Invoicing and Payment

4.1. PROVIDER will issue invoices on the 1st day of each month for the services provided in the previous month.

4.2. SUBSCRIBER agrees to make payment within 15 days from the invoice date. If payment is not received after the due date, PROVIDER reserves the right to disconnect the license until payment is made in full. SUBSCRIBER may be subject to license reactivation fee as specified in Schedules.

4.3. If payment is not received in 30 days after the due date, PROVIDER may immediately terminate this agreement without any further notice and may permanently disable all the Equipment supplied by PROVIDER. The SUBSCRIBER is responsible for any costs associated with the disposal of the disabled Equipment.

5 Term and Termination

5.1. This Agreement shall commence on the Effective Date and shall continue on a month-to-month basis.

5.2. Either party may terminate this Agreement with 30 days' written notice.

5.3. In case of non-payment, PROVIDER may terminate the Agreement, disable the license as outlined in this Agreement, and permanently disable all the supplied Equipment.

6 Termination and Partial Cancellation

6.1. SUBSCRIBER may terminate the entire subscription or cancel a portion of the licenses by providing written notice to the PROVIDER at least 30 days prior to the desired termination or partial cancellation date.

6.2. In the event of partial cancellation, SUBSCRIBER acknowledges that a minimum subscription service fee may apply, as specified in Schedules.

6.3. The SUBSCRIBER acknowledges and agrees that, upon termination, they shall cease all use of the Equipment and connected services.

6.4. In the event of termination of this Agreement or any license, whether due to the expiration of the term, cancellation, or for any other reason, all devices associated with the terminated license(s) may be PERMANENTLY disabled by the PROVIDER.

6.5. In the event of termination, SUBSCRIBER shall provide a written list of serial numbers (SN) corresponding to the licenses for which the subscription agreement is terminated, along with the termination notice.

6.6. The SUBSCRIBER is responsible for any costs associated with the return or disposal of the Equipment, as determined by the PROVIDER.

6.7. In case of permanent sensor damage or loss, including theft, or other reason which makes sensor inoperative, including but not limited to the drained battery, SUBSCRIBER shall provide serial number (SN) of such sensor and request PROVIDER to terminate the license in writing.

7 Equipment Warranty and Returns

7.1. PROVIDER warrants that any Equipment provided as part of the services under this Agreement shall be free from defects in material and workmanship for a period of one (1) year from the date of delivery.

7.2. In the event of a defect covered by this warranty, PROVIDER, at its discretion, will either repair or replace the defective hardware.

7.3. This warranty does not cover damage resulting from accidents, misuse, tampering, or unauthorized repairs or modifications. The warranty is void if the SUBSCRIBER fails to follow the instructions provided by the PROVIDER for the proper use and maintenance of the hardware. To make a warranty claim, the SUBSCRIBER must notify the PROVIDER within the warranty period. The foregoing states the SUBSCRIBER's sole and exclusive remedy for any breach of warranty.

7.4. If SUBSCRIBER is dissatisfied with Equipment from PROVIDER for any reason, SUBSCRIBER may ship it back to PROVIDER at SUBSCRIBER's own cost within the first 30 days of active Service. PROVIDER will refund Equipment charges once PROVIDER receives the Equipment and verifies that all components are included, and it is in Good Working Condition. If Equipment is returned with damaged or missing components, PROVIDER may issue only a partial refund.

8 Confidentiality

8.1. Both parties agree to maintain the confidentiality of any proprietary information disclosed during the term of this Agreement, including pricing information.

8.2. PROVIDER is not responsible for corrupted files or “viruses”, “cancelbots", "trojan horses", "worms", or other harmful components (“Virus(es)”) which affect SUBSCRIBER or SUBSCRIBER Services. It is SUBSCRIBER responsibility to secure and safeguard SUBSCRIBER systems through appropriate means (like software available for this purpose) from theft, unauthorized use, or system corruption.

8.3. If SUBSCRIBER failure to secure and safeguard SUBSCRIBER systems causes detriment to PROVIDER network or to a network PROVIDER make use of, including PROVIDER’s underlying Carriers’, PROVIDER may immediately cancel SUBSCRIBER Services.

8.4. PROVIDER cannot ensure or guarantee the privacy of information SUBSCRIBER choose to collect or transmit through the Service. Any such use is at SUBSCRIBER's sole risk, and the PROVIDER is relieved from all liability in connection with it. Advise PROVIDER immediately of any security breach, such as compromise of SUBSCRIBER Account information: Account numbers and passwords, email account passwords, hosted webpage account passwords, and so on.

9 Intellectual Property Rights

9.1 Any Software supplied to SUBSCRIBER or otherwise made available to SUBSCRIBER in connection with the Service will be subject to the terms of an associated Software end-user license agreement (“EULA” or “Software License Agreement”) and shall remain PROVIDER property or that of PROVIDER agents or suppliers, as applicable. SUBSCRIBER shall take appropriate steps to protect the same against loss or damage. A copy of the applicable Software License Agreement will either be included with the Software or will be presented during the installation of the Software.

9.2. It is SUBSCRIBER responsibility to review and agree to the terms and conditions of the applicable Software License Agreements before installing or using the Software.

9.3. Unless otherwise provided in the applicable Software License Agreement, a Software License Agreement ends when SUBSCRIBER subscription to all Services employing the corresponding Software terminates, and all Software License Agreements will terminate upon termination of the Agreement.

9.4. Upon termination of a Software License Agreement, SUBSCRIBER must forthwith return or destroy any copies of the corresponding Software in SUBSCRIBER possession. All intellectual property rights in the Software supplied by PROVIDER are owned by PROVIDER, PROVIDER’ Carriers and/or other Affiliated Partners or their suppliers and are protected by applicable copyright laws. All of these parties retain any and all rights not expressly granted under the applicable Software License Agreement.

9.5. All intellectual property rights related to the services provided under this Agreement shall belong exclusively to the PROVIDER.

9.6. The Subscriber agrees not to reverse engineer, decompile, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Equipment or services provided by the Provider.

9.7. Any suggestions, enhancements, or feedback provided by the Subscriber related to the services shall become the exclusive property of the Provider, and the Subscriber hereby assigns all rights, title, and interest in such suggestions, enhancements, or feedback to the Provider. 

9.6. The SUBSCRIBER acknowledges that SUBSCRIBER has no rights, title, or interest in or to any intellectual property owned by the PROVIDER.

10 Data Ownership and Usage

10.1. SUBSCRIBER acknowledges that PROVIDER may collect, store, process, and reuse data obtained through the use of supplied Equipment or other means during the provision of services under this Agreement.

10.2. PROVIDER retains ownership of all data collected through its sensors or other data collection methods. SUBSCRIBER grants PROVIDER the right to use the collected data for scientific, research, marketing and commercial purposes.

10.3. PROVIDER shall not be responsible for any loss of data, whether due to termination of this Agreement, Equipment or Software failure, or any other circumstances.

11 Prohibition on Resale

11.1. SUBSCRIBER acknowledges and agrees that SUBSCRIBER shall not, directly or indirectly, resell, sublicense, lease, distribute, or otherwise transfer the services provided under this Agreement to any third party without the prior written consent of the PROVIDER.

11.2. Any attempt to resale services without the PROVIDER's explicit written consent shall be considered a material breach of this Agreement. In the event of a breach of this provision, the PROVIDER reserves the right to terminate this Agreement and pursue any legal remedies available.

12 Termination by Provider

12.1. PROVIDER may terminate this Agreement under the following circumstances:

​(a) Non-Payment: If the SUBSCRIBER fails to make payment for the services within the 15 days, as outlined in this Agreement, PROVIDER reserves the right to terminate this Agreement, disconnect the license and permanently disable all the supplied Equipment.

​(b) Breach of Agreement: If the SUBSCRIBER breaches any material term or condition of this Agreement, PROVIDER may terminate the Agreement after providing written notice to the SUBSCRIBER, allowing 15 days for remedy. If the breach is not remedied within the specified time, PROVIDER may terminate the Agreement.

​(c) Other Reasons: PROVIDER may terminate this Agreement for any reason upon providing written notice to the SUBSCRIBER at least 30 days before the proposed effective date of termination. In case of termination, SUBSCRIBER shall be responsible for the payment of any outstanding fees and charges.

13 Limitation of Liability

13.1 Unless specifically stated otherwise in the Agreement, to the maximum extent permitted by applicable law, the PROVIDER will not be liable to the SUBSCRIBER or any third party for:

  ​• Any direct, indirect, special, consequential, incidental, economic, or punitive damages (including loss of profit or revenue, financial loss, loss of business opportunities, loss, destruction, or alteration of data, files, or software, breach of privacy or security, property damage, personal injury, death, or any other foreseeable or unforeseeable loss, however caused) resulting or relating directly or indirectly from or relating to the Offering or any advertisements, promotions, or statements relating to any of the foregoing, even if PROVIDER was negligent or advised of the possibility of such damages;

​• The performance, availability, reliability, timeliness, quality, coverage, uninterrupted use, security, pricing, or operation of the Offering;

​• The denial, restriction, blocking, disruption, or inaccessibility of any Services;

​• Any lost, stolen, damaged, or expired Equipment, identifiers, passwords, codes, benefits, discounts, rebates, or credits;

​• Any error, omission, or delay in connection with the telecommunications service PROVIDER or any limitation connected thereto;

​• Any acts or omissions of a telecommunications carrier whose facilities are used to establish connections to points that PROVIDER does not serve; or

​• Any claims or damages resulting directly or indirectly from any claim that the use, intended use, or combination of the Offering or any material transmitted through the Services infringes the intellectual property, industrial, contractual, privacy, or other rights of a third party.

13.2. These limits are in addition to any other limits on PROVIDER liability set out elsewhere in the Agreement and apply to any act or omission of the PROVIDER, whether or not the act or omission would otherwise be a cause of action in contract, tort, or pursuant to any statute or other doctrine of law.

13.3.  SUBSCRIBER acknowledges that the services provided under this Agreement are provided "as-is" and without any guarantee of any kind, including guarantees of financial or other benefits to the SUBSCRIBER.

14 Indemnification

14.1. SUBSCRIBER will indemnify and hold harmless the PROVIDER from and against any claims, losses, damages, costs, and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by the PROVIDER relating to SUBSCRIBER's violation, alleged violation, or misappropriation of any intellectual property, industrial, contractual, privacy, or other rights of a third party or any alleged libel or slander by a third party against SUBSCRIBER.

14.2. SUBSCRIBER will indemnify and hold harmless the PROVIDER from and against any claims, losses, damages, costs, and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by the PROVIDER relating to the violation of the Agreement by SUBSCRIBER or any user of SUBSCRIBER Account, or in connection with SUBSCRIBER or their use of the Services.

15 Changes to Terms

15.1. PROVIDER reserves the right to change the terms of this Agreement by providing written notice to the SUBSCRIBER at least 30 days before the proposed effective date of the changes.

15.2. SUBSCRIBER acknowledges and agrees that continued use of the services after the effective date of the revised terms constitutes acceptance of the new terms. If the SUBSCRIBER does not agree to the revised terms, they may terminate this Agreement in accordance with the termination clause by providing written notice to the PROVIDER within 15 days from the date of the notice of changes.

16 Changes to Subscription Fee

16.2. PROVIDER reserves the right to change the subscription fee or structure of the subscription fee by providing written notice to the SUBSCRIBER at least 30 days before the proposed effective date of the fee change.

16.3. The SUBSCRIBER acknowledges and agrees that continued use of the services after the effective date of the revised subscription fee constitutes acceptance of the new fee.

17 Force Majeure

17.1. In no event shall PROVIDER be liable for any failure to comply with the Agreement if such failure results from any condition or event beyond PROVIDER's reasonable control, including, but not limited to, computer hacking, security breach, fire, flood, earthquake, any elements of nature, or acts of God, theft, riot, strike, or other labor disturbance, power failure, war, or terrorism, nuclear incident.

17.2. PROVIDER shall not be liable for any consequences arising from changes in government regulations and standards affecting the provision of services.

17.3. In the event that the communication service PROVIDER engaged by PROVIDER is unable to provide communication services, PROVIDER shall not be held responsible for such unavailability.

18 Governing Law

18.1. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario, Canada.

19 Miscellaneous

19.1. The Agreement, as amended from time to time, constitutes the entire agreement and understanding between the SUBSCRIBER and the PROVIDER for the Services and supersedes all prior agreements, written or oral, with respect to the same subject matter.

19.2. If any provision in the Agreement is declared to be invalid or in conflict with any such law or regulation, that provision may be deleted or modified without affecting the validity of the other provisions.

19.3. PROVIDER's failure to enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right.

19.4. PROVIDER may assign PROVIDER's rights and obligations under the Agreement without SUBSCRIBER's consent. SUBSCRIBER may not assign or transfer the Agreement without PROVIDER's prior consent.

19.5. The provisions of those Sections of the Terms of Service that are by their nature intended to survive termination of the Agreement shall survive such termination. For example, and without limitation, the provisions of the Terms of Service relating to PROVIDER's rights to collect amounts owing at the time of Termination of the Agreement, SUBSCRIBER's obligation to return Software and Equipment belonging to PROVIDER upon termination of the Agreement, timeframe applicable to claims and adjustments for incorrect billing, no warranties, limitations of liability (including without limitation all such bolded provisions throughout the Terms of Service), indemnities (including without limitation all such bolded provisions throughout the Terms of Service), privacy and confidentiality, termination and consequences of termination of the Agreement, dispute resolution, intellectual property, entire agreement, severability, waiver, no modification of Agreement through course of conduct, assignment and restrictions thereon, survival, language, governing law, provisions relating to the interpretation of the Terms of Service relevant to any of the other provisions that survive the termination of the Agreement.

19.6. The Agreement executed to the benefit of and is binding on SUBSCRIBER, SUBSCRIBER's heirs, and SUBSCRIBER's legal personal representatives and on the PROVIDER's respective successors and assigns.

19.7. The parties have required that the Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.