TERMS OF SALE

MIMIQ, INC.

TERMS OF SALE

 

Last Updated: October 21, 2021

 

  1. INTRODUCTION

These Terms of Sale (“Terms of Sale”) apply to all orders accepted by Mimiq, Inc., a Delaware corporation (Mimiq,” “us,” “we,” and “our”) for the sale of the physical goods (“Products”), unless you and Mimiq have executed a written agreement, which supersedes these Terms of Sale. We may sell our Products through authorized distributors (each a “Distributor” and collectively “Distributors”), the sale of which is also governed by these Terms of Sale. To the extent the Products contain or consists of software in any form (“Software”), such Software is licensed to you, not sold, only in accordance with the section entitled “Software License” below or any relevant provision under the “Terms of Service” below. Terms such as “sell” and “purchase”, as used in these Terms of Sale, apply only to the extent the Products consist of items other than Software. Capitalized terms, not defined herein, have the meaning ascribed to them under the Terms of Service, the Privacy Policy and/or the Product Warranty [see Section 2(j)].

These Terms of Sale are a legally binding agreement between Mimiq AND you, the buyer (“You,” the “Buyer,” or the “User”) or the Distributor AND You, as applicable, and apply to all the Products offered for sale by Mimiq. If you purchase any of the Products from a Distributor, then these Terms of Sale shall apply as a legally binding agreement between You and the Distributor. Therefore, if you purchase Products from a Distributor, you understand and agree that the Distributor is solely liable for satisfying any damages arising under these Terms of Sale, and you should contact the Distributor directly for the same.

IF YOU BUY PRODUCTS FROM US, FROM DISTRIBUTORS OR USE MIMIQ’S SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SALE AND THE TERMS OF SERVICE AND OUR PRIVACY POLICY OR THE DISTRIBUTORS’ PRIVACY POLICY, AS APPLICABLE. IF YOU DO NOT AGREE WITH THESE TERMS OF SALE, TERMS OF SERVICE, APPLICABLE PRIVACY POLICY, OR PRODUCT WARRANTY, DO NOT REGISTER OR BUY ANY PRODUCTS FROM US OR FROM DISTRIBUTORS. PRIOR TO PURCHASING OUR PRODUCTS, PLEASE READ, UNDERSTAND, AND ACCEPT THE FOLLOWING, WHICH TOGETHER FORMS THE ENTIRE AGREEMENT BETWEEN MIMIQ AND YOU:

  1. TERMS OF SALE;
  2. TERMS OF SERVICE;
  3. PRIVACY POLICY; AND
  4. PRODUCT WARRANTY [See Section 2(j)]
  5. RETURN MATERIAL AUTHORIZATION POLICY
  6. CUSTOMER SUPPORT POLICY

 

If you purchase from us and have any questions about our Terms of Sale, please send us an email here. If you purchase from a Distributor, please contact the Distributor directly.

Introduction to Mimiq, Inc.

Mimiq, Inc. (formerly Smart Mimic, Inc.), is a Silicon Valley company that develops fifth-generation low-power, long range, connected consumer devices for portable safety, trackers, and other applications – and also builds the gateways needed to connect them. With headquarters in San Francisco and subsidiaries in Turkey and Canada, Mimiq is establishing development centers and building distribution partnerships globally. A growth stage company, Mimiq received founding investments from key Amazon, Apple and Google alumni and executives as well as strategic investments from IoT network providers and security companies.

 

2. PRODUCT TERMS OF SALE

a. Introduction to Mimiq Product and Services

These Terms of Sale and Terms of Service to apply all of the Products offered for sale by Mimiq or by  Distributors, including but not limited to the Products listed here.

 

b. Offer and Acceptance

You can purchase our Products from our websites listed here, or Distributors’ website (collectively the “Websites”) Once you purchase the Products, you may download any related Applications on your mobile device, synchronize it with our Product, and stay connected using Bluetooth (subject to range) or LoRaWAN or Helium (subject to coverage).

ALL ORDERS PLACED ON THE WEBSITES ARE FINAL AND NONCANCELLABLE UNLESS OTHERWISE AGREED TO US IN WRITING ON OUR WEBSITE OR APPLICATION OR IN THE PACKAGE FOR THE PRODUCT.

 

c. Prices

The prices for the Products, our Services and any other Products are either set forth on our Websites or provided via a price quote or invoice and on the Distributors’ webpages or their price quote or invoice.  You agree to pay the prices set forth therein. The prices are subject to change at any time.  But, once you have placed your order, the price in effect at the time of the placing of the order will be what we or the Distributors charge you.

 

 

d. Delivery and Risk

The prices for the Products do not include shipping costs. You will be charged separately for shipping. The shipping and other delivery charges and methods are described on the Websites. Delivery timelines/dates specified on the Websites or elsewhere are estimates only. While we and the Distributors will endeavor to meet such timelines or dates, we do not undertake, promise, or warrant to dispatch the Products by a particular date or dates. We or the Distributors will not be liable to you for any delays or failure to do so. Except as otherwise provided in these Terms of Sale, title and risk of loss to our Products pass from Mimiq or from Distributors to you when the Products are given to a delivery company or designee at or designated facility.

 

e. Availability

While we make every effort to ensure that our Products listed on the Websites are available, we or the Distributors cannot guarantee that Products are in stock, immediately available, or available for distribution or delivery in all parts of the world when you submit your pre-order or order. We or the Distributors may reject your pre-order or order, without liability, if we are unable to process or fulfill it for any reason. If this is the case, we will refund any prior payment that you have made for that item if any such payment has been made.

 

f. Cancellation Policy

After the Products have been delivered or placed in the custody of a common carrier, you may not modify or cancel your order. We or the Distributors may cancel your order at any time prior to shipment for any reason in our sole discretion, including but not limited to (i) the inability to process or fulfill the order; (ii) you are in a country where Products cannot be purchased or shipped; and (iii) your order does not comply with any applicable Terms of Sale, and in such event, we will authorize our payment processing partners to issue you a credit or refund for any amounts already paid. If you have questions about our cancellation policy, please email us here or the Distributors, as applicable. After shipment, neither you nor we or the Distributors may cancel the order.

 

g. Sales Tax

Depending on the order, Mimiq or the Distributors will charge applicable sales tax in accordance with applicable laws.

 

h. Final Purchase and Refund Policy

ONCE CONFIRMED BY MIMIQ OR DISTRIBUTORS, ALL PRODUCT PURCHASES FOR MIMIQ PRODUCTS ARE FINAL, NONCANCELLABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE CANCELLATION POLICY SET FORTH ABOVE.

 

i. Resale

Purchases made through the Websites are intended for end users only and are not authorized for resale. We will not honor any warranties of the manufacturer nor will our limited warranty pass through to person to whom you resold the Product. DO NOT RESELL OUR PRODUCTS.

 

j. Product Specifications and Limited Warranty

All Products specifications, illustrations, drawings, images, particulars, dimensions, performance data, and other information on the Websites or made available by us are intended to represent no more than a general illustration of Products and their features and do not constitute a warranty or representation by us that Products will conform with the same. Products that are shipped to you may vary from these images or specifications. This limited warranty does not cover any damage due to: (a) transportation; (b) storage; (c) improper use; (d) failure to follow the product instructions or to perform any preventive maintenance; (e) modifications; (f) unauthorized repair; (g) normal wear and tear; or (h) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.

PRODUCTS INCLUDING BUT NOT LIMITED TO THE PRODUCTS LISTED HERE ARE PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND WILL BE BINDING ON OR OBLIGATE US. PRODUCTS ARE EXPRESSLY PROVIDED TO YOU “AS IS” UNLESS WARRANTED BY APPLICABLE LAW. IF ANY TECHNICAL SUPPORT OR ASSISTANCE IS PROVIDED WITH RESPECT TO PRODUCTS AND THE USE THEREOF, IT IS PROVIDED “AS IS”, WITHOUT WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE USE OR OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR ALL RISKS RELATING TO THE USE OF PRODUCTS AND THE QUALITY AND PERFORMANCE OF PRODUCTS AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION EXCEPT AS EXPRESSLY SET FORTH AS PART OF THE CANCELLATION POLICY. THESE TERMS OF SALE STATE YOUR SOLE AND EXCLUSIVE REMEDIES. SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OR LIMITATION OF WARRANTIES, SO THE ABOVE DISCLAIMER OR LIMITATION OF LIABILITY BELOW MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, MIMIQ OR DISTRIBUTORS’ TOTAL LIABILITY FOR ANY DAMAGE OF ANY NATURE WHATSOEVER TO YOU OR THIRD PARTIES CAUSED BY OUR PRODUCTS IS LIMITED TO THE PRICE THAT YOU PAID FOR THE PRODUCT.

 

  1. PAYMENT TERMS

By providing a credit card or other payment method accepted by Mimiq or Distributors, you represent and warrant that you are authorized to use the designated payment method and that you authorize our third-party payment processor to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid, or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change, or update payment information associated with your Mimiq or Distributors’ Account, you can do so at any time by logging into your Account and editing your payment information. All Products offered on the Websites are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue offering certain Products without prior notice.

 

  1. SOFTWARE LICENSE

When you purchase any of our Products,  Mimiq grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Mimiq, and, in order to protect such trade secrets, you agree not to disassemble, decompile, or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law.  Mimiq reserves all rights and licenses in and to the Software not expressly granted to you under this Terms of Sale or any of the related terms.

 

  1. COMPATIBILITY

You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund.

 

  1. PARENTAL RESPONSIBILITIES

IF YOU ARE BUYING THE PRODUCTS FOR USE WITH YOUR CHILDREN UNDER THE AGE OF 18, PRODUCTS  ARE  NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 18. IF YOU ARE UNDER THE AGE OF 18 AND BUYING THE PRODUCTS FOR YOUR USE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE CONSENT OF YOUR PARENT OR GUARDIAN TO BUY AND USE THE PRODUCTS. PRIOR TO PURCHASING THE PRODUCTS, PLEASE  READ THE TERMS OF SERVICE AND ENSURE COMPLIANCE WITH IT IN ITS ENTIRETY. YOU ARE BOUND BY AND MUST COMPLY WITH THE TERMS OF SERVICE. READ THEM CAREFULLY. YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE PRODUCTS AND AGREE TO DEFEND, INDEMNIFY, AND HOLD US HARMLESS FOR ANY HARM ASSOCIATED WITH YOUR USE, YOUR CHILDREN’S USE, OR A THIRD PARTY’S USE OF THE PRODUCTS.

 

  1. OTHER TERMS

 a. TERMS OF SERVICE. AS INDICATED THROUGHOUT, THESE TERMS OF SALE ARE ALSO SUBJECT TO THE TERMS OF SERVICE AND PRIVACY POLICY OR DISTRIBUTORS’ PRIVACY POLICY, AS APPLICABLE. PLEASE REVIEW THE TERMS OF SERVICE ALONG SIDE THESE TERMS TO UNDERSTAND THE FULL EXTENT OF YOUR RIGHTS AND RESPONSIBILITIES. YOU AGREE TO BE BOUND BY THESE TERMS OF SALE AND THE TERMS OF SERVICE WHEN YOU BUY THE PRODUCTS.

b. Mandatory Arbitration and Waiver of Class Action and Trial by Jury.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MIMIQ OR DISTRIBUTORS, LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, AND PROHIBITS YOU FROM PARTICIPATING IN CLASS ACTIONS, AND REQUIRES YOU TO WAIVE YOUR RIGHTS TO A TRIAL BY JURY.

Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, the Parties agree that any Dispute between them with respect to these Terms of Sale and/or the use of the Products listed here and other Product offered for sale by Mimiq or Distributors will be submitted to mandatory, binding arbitration under the commercial arbitration rules, then in effect, of the American Arbitration Commission. The Parties further agree (a) to waive their respective rights to have any and all Disputes arising from or related to this agreement, use of the Products listed here and other Product offered for sale by Mimiq and Services, resolved in a court, and (b) to waive their respective rights to a jury trial. instead, you and Mimiq or you and Distributors agree to arbitrate all Disputes through binding arbitration.  You, on your behalf and on the behalf of your child, further agree not to participate in any class action with respect to this Agreement and/or the use of the Products. You agree that the arbitration will be held before a single arbitrator to be agreed to by the Parties in the City of Santa Clara.

c. Our Products are currently available for sale in those regions as set forth in the applicable Product literature based on the certifications and compliance requirements of the applicable country. If you reside in or are a visitor in the European Union (“EU”) or the European Economic Community (“EEC”) and, with the EU, collectively “Europe”), the EU’s General Protection Data Regulation (“GDPR”) will apply to your transactions with us. We intend to fully comply with the letter and spirit of the GDPR. Please see our Privacy Policy for our complete commitments to the GDPR and the privacy of your Personal Data, as defined in the GDPR, in connection with your transactions with you under the Terms of Service. Please regularly review these Terms of Use as sales in new countries develop. Please regularly review these Terms of Use as we expand sales in new countries at our discretion.

 

  1. CONTACT US

IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS OF SALE, PLEASE FEEL FREE TO SEND US AN EMAIL HERE OR CONTACT THE DISTRIBUTORS AS APPLICABLE.

PLEASE NOTE THAT BY USING THE PRODUCTS, THE WEBSITE, APPLICATION, AND THE SERVICES YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY WITH THESE TERMS OF SALE ALONG WITH ALL OTHER RELATED TERMS AS MENTIONED UNDER SECTION 1 – INTRODUCTION. IF YOU DO NOT AGREE TO THESE TERMS OF SALE, PLEASE DO NOT USE OUR PRODUCTS, THE WEBSITE, APPLICATION, AND THE SERVICES AND EXIT IMMEDIATELY.