90-Day Trial Terms and Conditions

This offer (the “90-Day Trial Offer”), which is made to you by Smart Valves Inc., a California corporation (“Company”), entitles you to test Company’s steam traps (the “Products”) in your steam system for a period of ninety (90) days from the date of Product delivery, at Company’s expense (the “Trial Period”). In order to qualify for the 90-Day Trial Offer, you must submit details about the anticipated scope of Product testing and the specifications of your steam system, including steam-trap sizing. The Company will then issue a written quote (“Quote”) stating the ultimate Product purchase terms, at which point you will issue a purchase order (“PO”) and the Company will ship the Products to you. With your submission of a PO, you (i) accept the 90-Day Trial Offer, and (ii) acknowledge and agree to these 90-Days Trial Offer terms and conditions (“Terms and Conditions”). If you decide that you do not want to purchase the Products after delivery, you must notify the Company in writing of your purchase declination prior to the end of your Trial Period and ship the uninstalled Products, properly packaged and at your expense, to the Company address listed in the Quote (or as otherwise directed by the Company) within ten (10) days of Company’s confirmation of such notification (should Company not respond to your purchase declination within two (2) days, you must immediately contact the Company to ensure receipt of such declination). In the event the Company reasonably determines that the Products have been properly returned, complete with all components and in as good a condition as when provided to you (ordinary wear and tear excepted), you will not be obligated to purchase the Products. Otherwise, at the end of your Trial Period, you will automatically be bound to purchase the Products and the Company will issue an invoice setting forth the terms in the Quote, which invoice must be paid net 30 (i.e. within thirty (30) days of receipt), or as otherwise may be agreed in advance by the Company in writing. There are no cancelations or refunds following the conclusion of the Trial Period, and you accept and acknowledge that after being bound to purchase the Products after the conclusion of the Trial Period, if applicable, your sole recourse will be warranty and service support as accorded to all purchasers of Company products. No defect in, unfitness or improper sizing of, or an inability by you to use the Products, howsoever caused, shall relieve you from the purchase obligation should you fail to notify the Company in writing of your purchase declination prior to the conclusion of the Trial Period. You assume full responsibility for, and in the event of loss or damage to the Products during the Trial Period, you shall be bound to purchase the Products as if you had agreed to do the same under these Terms and Conditions. You may only use this 90-Day Trial Offer once.
By accepting the 90-Day Trial Offer you are deemed to have read and agreed to these Terms and Conditions, which may be updated or changed from time to time by the Company without notice to you. If you do not agree with any of these Terms and Conditions, do not submit your steam system details or accept the 90-Day Trial Offer. Because the Company’s services and products are evolving over time, the Company may change or discontinue all or any part of its offers, services and/or products, at any time and without notice, at the Company’s sole discretion. Your continued use of this website or the Products following the posting of any changes to these Terms and Conditions constitutes acceptance of those changes.

1. Customer Requirements

The 90-Day Trial Offer is available only to, and may only be used by, entities which own or maintain a steam system containing no less than ten (10) steam traps. You are accepting the 90-Day Trial Offer on behalf of such an entity, and represent and warrant that you are authorized to accept these Terms and Conditions on such entity’s behalf and that such entity agrees to be responsible to the Company if you or such entity violates these Terms and Conditions. In connection with your acceptance of the 90-Day Trial Offer you must (i) attend a Product presentation, either telephonically or in-person, in order to acquaint you with the Products and their capabilities and maintenance requirements, and (ii) provide information and details, to the Company’s satisfaction, as to the scope of your testing and use of the Products during the Trial Period. Additionally, you must complete a Product sizing form provided by the Company, and direct any questions as to how to determine proper Product sizing to the Company to ensure that the appropriately-sized Products are delivered to you in accordance with the 90-Day Trial Offer. The Company may provide an insert or suggest an exchange to a differently-sized Product at its expense, in its sole discretion, in the event the Product sizing does not allow proper operation of the Products within your steam system. You represent and warrant that you are at least eighteen (18) years old and that all information you submit in connection with the 90-Day Trial Offer is accurate and truthful.
Furthermore, the 90-Day Trial Offer is available only to, and may only be used by, entities located in the United States of America, Canada, European Union, Thailand, Malaysia, Qatar, and Saudi Arabia (in Thailand and Malaysia, as well as other locations in the Company’s sole discretion, the 90-Day Trial Offer shall be coordinated by distributors of the Company’s products, rather than by the Company directly).
You are required to properly install the Products in your steam system upon delivery and provide the Company with information as to the performance of the Products, including submitting commissioning forms provided by the Company, as requested by the Company during the Trial Period. If you require assistance with the installation of the Products, the Company may provide such assistance to you upon payment terms as shall be determined by the Company in its sole discretion.

2. Title to Products during Trial Period

Throughout the Trial Period, the Products shall remain at your principal place of business or other location as approved in advance by Company. The parties acknowledge that no right, title, or interest in the Products shall pass to you until the invoice pursuant to the PO has been issued and paid by you, at which point the transfer is conditioned upon your compliance with and fulfillment of these Terms and Conditions and those set forth in the Quote. You agree not to sell, assign, sublet, pledge, or otherwise encumber any interest in these Terms and Conditions or the Products and agree to keep the same free from any lien, encumbrance, right of restraint, or any other claim that may be asserted by any third party throughout the Trial Period. The Company hereby reserves all rights in the Products’ underlying intellectual property and nothing in these Terms and Conditions will be deemed to grant any license therein other than the licenses expressly set forth in these Terms and Conditions or the Quote.

3. Prohibitions During Trial Period

In the event any of the following acts or omissions occurs in connection with the Products during the Trial Period, the 90-Day Trial Offer shall automatically terminate and you shall be bound to purchase the Products:
• Improper use or abuse of Products by you or any third party, whether intentional or not;
• Failure to properly maintain Products in accordance with maintenance instructions, as evidenced by proper maintenance documentation;
• Modifications to Products made by you or any third party;
• Use of tooling manufactured or acquired by you which is not compatible with or intended to be used with the Products;
• Failure to operate Products consistent with specifications;
• Failure to properly clean Products;
• Operator error or accident;
• Inadequate power or pressure to operate Products;
• Failure to properly train operators; and
• Use in or with products of poor-quality materials or materials varying from those specified by the Company.

4. Confidentiality and Non-Disparagement

You agree that you shall maintain in confidence the nature of Product tests conducted by you, the results of such tests, and any other matter related to your exercise of the 90-Day Trial Offer or use of the Products. Additionally, you agree that at no time in the future will you in any way make any disparaging remarks, verbally or in writing, to third parties or in any other public and non-public forums, concerning the Company or the Products.

5. Remedies

Your sole remedy for a breach of this agreement is an action at law for damages. You waive any right of rescission or to injunctive or other equitable relief.

6. Limitation of Liability

THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS OR THE QUOTE, THE COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY AND, IN PARTICULAR, DOES NOT MAKE ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. NEITHER WE NOR ANY THIRD PARTIES PROVIDE ANY WARRANTY OR GUARANTEE AS TO THE ACCURACY, TIMELINESS, PERFORMANCE, COMPLETENESS OR SUITABILITY OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE. FURTHER, THE COMPANY MAKES NO WARRANTY THAT YOU OR YOUR PROPERTY WILL NOT BE DAMAGED OR HARMED IN THE USE OF THE PRODUCTS.

Your use of the Products is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that the Products meet your specific requirements.

IN NO EVENT WILL THE COMPANY, OR ITS AFFILIATES, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES; OR (III) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO THE COMPANY IN CONNECTION WITH THE PRODUCTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. THE COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY.

7. Indemnification

You agree to indemnify, defend and hold the Company, its subsidiaries, affiliates, officers, agents, employees and partners harmless from any liability, claim, demand, administrative action, cause of action, suit, damage, loss, cost or expense, including reasonable attorneys’ fees, made by any third party due to or arising out of your use or misuse of the Products or your violation of these Terms and Conditions.

8. Force Majeure

Neither the Company, nor vendors or services used by the Company in the provision of the Services, if any, shall be liable due to causes beyond the control and without the fault or negligence of such party. Such causes may include, but are not restricted to, acts of God or of a public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, power failure, or failure of the U.S. postal system, but in every case the failure to perform will be beyond the control and without fault or negligence of the party failing to perform. Such party will inform You of any Force Majeure event as soon as practicable after its occurrence.

9. Miscellaneous

The Company’s rights under these Terms and Conditions may be assigned, however you may not assign your rights under these Terms and Conditions. These Terms and Conditions shall inure to the benefit of the parties and their successors, administrators, heirs and assigns. These Terms and Conditions shall be interpreted under the laws of the State of California applicable to contracts entered into and fully to be performed therein. No waiver of any term hereof shall be deemed to be continuing or be deemed to waive any other term hereof. Unless the parties have a written agreement signed by each of them that governs the relationship between the parties, these Terms and Conditions constitute the entire understanding of the parties concerning the subject matter hereof; all prior negotiations and understandings are merged herein. If there is a conflict or contradiction between the provisions of these Terms and Conditions and any other relevant terms and conditions, policies or notices, the provisions of these Terms and Conditions shall prevail in connection with the 90-Day Trial Offer. Should any term or provision of these Terms and Conditions be deemed or held to be invalid or unenforceable, the remaining terms and provisions will continue in full force and effect. Headings are solely for convenience or reference and do not constitute a part of these Terms and Conditions. The terms “including” and “includes” should be read as “including/includes, but not limited to.” All rights and remedies given to the Company in these Terms and Conditions are cumulative and not exclusive of any other rights or remedies which the Company otherwise may have at law or equity. Unauthorized use of the 90-Day Trial Offer or Products may give rise to a claim for damages.

10. Feedback

By providing the Company any suggestions, requests, recommendations, or other feedback regarding the 90-Day Trial Offer and/or the Products, you grant the Company permission to use or incorporate into the Company’s services and products such feedback, including allowing the Company the appropriate intellectual property rights to do so, including granting the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to any and all intellectual property rights that you may own or control to use, copy, modify, create derivative works based upon, and otherwise exploit your feedback for any purpose. You hereby waive all moral rights in any such information or content.

11. Legal Disputes

You agree that any dispute, claim, or controversy concerning these Terms and Conditions or the termination of these Terms and Conditions, or any dispute, claim or controversy arising out of or relating to any interpretation, construction, performance or breach of these Terms and Conditions, shall be settled by arbitration to be held in Los Angeles County, California in accordance with the rules then in effect of the American Arbitration Association. There shall be a single arbitrator who may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The parties will pay the costs and expenses of such arbitration in such proportions as the arbitrator shall decide, and each party shall separately pay its own counsel fees and expenses. You agree to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. You hereby waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms and Conditions.

12. Electronic Signature

You agree that your acceptance of the 90-Day Trial Offer constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and will meet the requirements of an original signature. You may not raise the use of an electronic signature as a defense to the enforcement of these Terms and Conditions.

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