Terms of sale

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SALE CAREFULLY (and all agreements incorporated herein by reference), as it is a legal agreement between you, the purchaser of ecobee product(s) (“Product” or “Products”) and ecobee Inc. (“ecobee”).

By checking the "I Agree" box and clicking on the “Submit Order” button to complete the purchase of ecobee Product(s), you hereby represent and agree that (i) you have read and agree to these ecobee terms and conditions of sale (“Standard Terms”) and you have full power and authority to execute this Agreement and bind Customer (as hereinafter defined); (ii) you acknowledge and agree that the ecobee web portal service (the “Service”) which will enable you to operate and manage the Product thermostat remotely and create and view energy performance reports, will require you to (a) register with ecobee at www.ecobee.com (the “Site”) and (b) agree to be bound by ecobee's then current Terms of Service (provided by ecobee during the registration process); (iii) ecobee may, in accordance with the Standard Terms, on electronic receipt of the completed order form (“Order”) pre-authorize the specified charges on the credit card specified in the Order and process the charges to such credit card prior to shipment of the Products specified in the Order; and (iv) the credit card information provided is yours or you have direct and full permission from the cardholder to carry out this transaction.

The Order and the Standard Terms, together with all other agreements referred to herein and hereby incorporated by reference, are together referred to as the “Agreement”. The Agreement shall be between ecobee, having its place of business at 333 Adelaide St. West, 6th Floor, Toronto, ON, M5V 1R5 Canada (phone contact details are provided below) and the person specified in the Order (“Customer”, “you”), having its principal place of residence or business at the address specified in the Order. The Agreement shall be effective as of the date Customer successfully submits the Order online to ecobee (“Effective Date”) on the Site. No variation of these Standard Terms shall be binding unless agreed in writing between ecobee and Customer.

In consideration of the mutual covenants herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Buying Products: All Orders for Product shall be deemed to be an offer by you to purchase Product in accordance with these Standard Terms. Acknowledgement of receipt of an Order shall not constitute acceptance of an Order by ecobee unless acceptance is expressly stated in such acknowledgement. ecobee reserves the right to decline to accept any Order entirely in its sole discretion at any time and for any reason. An Order shall only be accepted by ecobee when ecobee does so in writing or when ecobee delivers Product to Customer, whichever occurs first. ecobee agrees that it shall use commercially reasonable efforts to promptly notify Customer of its intention to reject any Orders. Once an Order has been accepted, ecobee may, in its sole discretion, make partial shipments to Customer to fill the Order if Product is on backorder.

2. Pricing: Product pricing is reflected in the Order. All dollar amounts on the Order and on the Site are and shall be expressed in U.S. Dollars. Prices for future orders are subject to change without notice, at ecobee's sole discretion. Prices are F.O.B. ecobee's designated North American warehouse unless otherwise specified in a particular Order. Customer will pay, in addition to the stated price, all charges for transportation, freight and handling of the Products and all taxes howsoever designated, levied or based on the purchase price of the Products or their use including federal, state, provincial and local, excise, sales, use, privilege, excise, personal property or other taxes, and all other rates, levies, fees, duties, assessments or other charges imposed by any government authority (including municipal, provincial or federal) on or in respect of this Agreement or the Products or their purchase, importation, delivery, possession, use or operation.

3. Terms of Payment: Payment in full shall be due and payable prior to shipment of Product via credit card. ecobee may, upon Customer's online confirmation of the Order, pre-authorize the charges specified on the Order to the credit card specified on the Order and will process the charges to such credit card prior to shipment. Time for payment by Customer shall be of the essence. In certain circumstances, ecobee may elect to invoice Customer and any such invoice shall be due and payable within 30 days of receipt thereof, after which time ecobee shall be entitled to interest at a rate of twelve percent (12%) per annum on any overdue amounts outstanding. In the event that Customer presents an NSF cheque to ecobee, ecobee shall be entitled to an additional charge of $35.00. Customer shall indemnify ecobee for all of ecobee's reasonable costs and expenses (including without limitation, reasonable legal fees) associated with the collection of any unpaid amounts due and payable hereunder.

4. Risk of Loss: Customer hereby assumes all risk regarding the Products, including without limitation, risk of loss, theft, damage or destruction (and whether or not insured against) upon delivery of the Products by ecobee to a carrier. The carrier shall be the agent of Customer.

5. Manner of Transportation and Delivery Date: ecobee will ship Products according to the specific shipping instructions Customer selected by Customer on the Order. Any delivery date quoted by ecobee is its best estimate and is based upon the conditions in its works at the time, and therefore such date shall be interpreted as being estimated only and in no event shall time be of the essence regarding such date or shall ecobee be liable for any failure to do so. If ecobee learns it cannot ship within the estimated times, ecobee will use commercially reasonable efforts to advise Customer of the new estimated shipment date. For items on backorder, ecobee may ship whenever the Product becomes available without any notice to Customer.

6. Cancellation / Delay by Buyer: Customer may not cancel Orders for Products available for immediate shipment. Customer may, on written notice of cancellation received by ecobee no less than one (1) business day prior to actual scheduled shipment date cancel Orders for pre-ordered Products or Products on backorder. Customer may not delay scheduled delivery of Products without ecobee's written consent.

7. Money-Back Guarantee and Return Policy: If you are the original purchaser who bought new Product directly from ecobee, you may for any reason return that Product in as-new condition to ecobee within up to 14 days after you have received the Product for a full, money-back refund or credit of the Product purchase price if already paid. The refund or credit does not include any shipping or handling charges; you are entirely responsible for shipping and handling charges. If you are an organization that bought Product under a separate, written agreement with ecobee, that agreement may contain different terms or conditions for the return of Product than specified herein.

   
   
   Procedure: To return Product, you must receive a Return Merchandise Authorization (“RMA”) number from ecobee. You must call ecobee Customer Service at 1-877-932-6233 to obtain a valid RMA number. You must prepay shipping and handling charges and insure the shipment or accept the risk of loss or damage during shipment. Returned Products must be in as-new condition, and all of the manuals, batteries, and other items included with a Product must be returned with returned Product.

8. Privacy: As part of the purchase process on the Site, ecobee will collect certain personal information about you. The collection, use and disclosure of your personal information by ecobee is subject to ecobee's Privacy Policy available at: www.ecobee.com/privacypolicy. ecobee reserves the unrestricted right to compile, aggregate and use your personal information, in aggregated statistical and non-personally identifiable form, for any purpose, including without limitation, for marketing and research purposes, the sale or lease of products or services, and the transfer of such information to our affiliates if any.

9. Software: The Product includes certain embedded ecobee proprietary software and firmware (“Software”). All use of the Software by Customer shall be subject to the terms and conditions of the End User License Agreement (“EULA”) distributed together with the Product and Customer agrees to adhere to the applicable terms and conditions of the EULA. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE EULA, YOUR ACCESS TO AND USE OF THE SOFTWARE WILL NOT BE PERMITTED AND YOU MAY, WITHIN THIRTY DAYS OF THE DATE OF YOUR PURCHASE OF THE PRODUCT, RETURN THE SOFTWARE TOGETHER WITH THE PRODUCT IN ITS ORIGINAL PACKAGING AND SALE CONDITION TO: (a) ecobee IF YOU HAVE PURCHASED THE ecobee PRODUCT DIRECTLY FROM ecobee OR; (b) TO AN ecobee AUTHORIZED RESELLER OR DISTRIBUTOR IF YOU HAVE PURCHASED THE ecobee PRODUCT FROM SUCH ENTITIES, AND ecobee OR ITS AUTHORIZED RESELLER OR DISTRIBUTOR AS APPLICABLE SHALL PROVIDE A FULL REFUND OF THE PURCHASE PRICE PAID WITHIN THIRTY DAYS OF ITS RECEIPT OF THE RETURN.

10. Product Warranty and Warranty claims: ecobee shall provide its standard Product limited warranty statement (“Customer Warranty”), which is incorporated by reference herein, with the Product for Customer's benefit only. In the event of a failure of a Product, refer to the Customer Warranty provided with the Product. EXCEPT AS SET OUT IN THE CUSTOMER WARRANTY, ECOBEE PROVIDES NO WARRANTIES TO CUSTOMER AND EXPRESSLY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, REPRESENTATIONS, PROMISES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ANY WARRANTY WITH RESPECT TO THE FUNCTIONALITY, DURABILITY, COMPATIBILITY, OPERATION OR USE OF THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY PERSON'S REQUIREMENTS OR THAT ANY OR ALL DEFECTS WILL BE CORRECTABLE.

    In the event of a failure of a Product, Customer may, subject to the terms and conditions hereof:

    • if Customer did not purchase the Product directly from ecobee, contact the third party contractor from whom the Product was purchased to obtain an equivalent replacement product, provided contractor determines that the returned Product is defective and Customer is otherwise eligible to receive a replacement product;

    • contact ecobee directly for service assistance at 1-877-932-6233and ecobee will make the determination whether an advance equivalent replacement product can be sent to Customer with return shipping supplies (in which case a hold shall be put on Customer's credit card for the value of the replacement product until ecobee has received the defective product). Product should be returned to the following address: ecobee Customer Service, 333 Adelaide Street West, 6th Fl., Toronto, ON M5V 1R5, Canada. If the returned Product is found by ecobee to be defective and Customer is otherwise eligible to receive a replacement product, no amount shall be charged to Customer's credit card; or

    • ship the defective Product directly to ecobee (at the address above), upon which ecobee will ship an equivalent replacement product to Customer, provided the returned Product is found by ecobee to be defective and Customer is otherwise eligible to receive a replacement product.

    All costs of shipment and handling associated with warranty claims shall be borne solely by Customer.

11. Support Services: In the event of a failure of a Product, telephone ecobee technical support, which shall be made available by ecobee during regular technical support hours (weekdays, between 9 a.m. and9 p.m. EST). To obtain Product or Service support, contact ecobee at info@ecobee.com or at 1-877-932-6233.

12. Limitation: IN NO EVENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW SHALL ECOBEE, ITS SHAREHOLDERS, AFFILIATES, CONTRACTORS, SUPPLIERS AND AGENTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES (COLLECTIVELY THE "ECOBEE PARTIES") BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR PERFORMANCE OF OR FAILURE TO PERFORM THEIR OBLIGATIONS UNDER THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN RESPECT OF LOSS OF USE, FAILURE TO ACCESS OR USE THE SERVICE, LOSS OF OR DAMAGE TO REAL OR PERSONAL PROPERTY, LOSS OF TIME OR INCONVENIENCE OR COSTS OF PROCURING SUBSTITUTE PRODUCTS) EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE ECOBEE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECOBEE PARTIES' TOTAL LIABILITY AND OBLIGATION IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE CAUSE OR FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE ACTUAL AMOUNTS PAID BY CUSTOMER TO ECOBEE UNDER THE APPLICABLE ORDER IN RESPECT OF THE PRODUCTS SUBJECT TO THE CLAIM. All disclaimers and limitations set forth herein shall apply regardless of the nature of any cause of action or demand (including, but not limited to breach of contract, breach of warranty, negligence, strict liability, tort or any other cause of action) and shall survive a fundamental breach or breaches and/or failure of the essential purpose of this Agreement or any remedy contained herein.

13. Title: If Customer makes payment in advance title to and ownership of the Products shall pass to Customer on delivery of Product by ecobee to a carrier, otherwise title to and ownership of Products shall not pass to Customer and shall remain with ecobee until Customer has paid all payments and other amounts owing to ecobee under this Agreement in full and has performed all obligations under this Agreement in full; thereupon, title to and ownership of the Products shall vest in Customer without further act.

14. Specifications: Product features, dimensions and other specifications set forth in ecobee sales literature or Information are subject to change. ecobee may, without affecting its obligations under an accepted Order, make changes in the specifications of the Products delivered under a Order from those contained in sales literature or information.

15. Entire Agreement and Amendment: This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, proposals, promises, inducements, representations, conditions, warranties, understandings, purchase or sales orders, negotiations and discussions, whether oral or written, of the parties. Any modification, amendment, supplement or other change to this Agreement must be in writing and signed by duly authorized representatives of the parties. As used herein, the term “Agreement” shall include any such future modifications, amendments, supplements or other changes hereto. No terms or conditions which may be contained in Customer's order forms, purchase orders or any other document not agreed to in writing by ecobee shall bind ecobee. This Agreement will enure to the benefit of and be binding upon the parties and their respective successors, heirs and permitted assigns. ecobee reserves the right to change the terms and conditions of this Agreement at any time and without notice and Customer is responsible to review this Agreement each time Customer submits an Order.

16. Intervening Events: ecobee shall not be liable for delay or failure in performance resulting from acts or events beyond the control of ecobee, including but not limited to, strikes or labour or industrial disturbances, civil disturbances, acts, orders, legislation, regulations or directives of any government or other public authorities, acts of public enemies, riots, sabotage, blockages, embargoes, shortages of labour, materials and suppliers, delays or failures of suppliers, lightning, earthquakes, fire, storms, hurricanes, floods, washouts, explosions and acts of God.

17. No Assignment: Neither this Agreement nor any right granted hereby is assignable by Customer without ecobee's prior written consent. ecobee may assign this Agreement at any time without notice to Customer.

18. Severability / Waiver: Any provision of this Agreement which is unenforceable in any jurisdiction shall, in such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.

19. Governing Law: This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario, Canada, without regard to conflict of laws principles. Any and all disputes arising under this Agreement, whether as to interpretation, performance or otherwise, shall be subject to the jurisdiction of the courts of the Province of Ontario and each of the parties hereto hereby irrevocably attorns to the jurisdiction of the Courts of the Province of Ontario, Canada. The parties expressly exclude the application of The United Nations Convention on Contracts for the International Sale of Goods to this Agreement.

20. Inconsistencies: In the event of any inconsistencies or conflicts between the terms of this Agreement and the terms of any schedules or other documents attached to or relating to this Agreement, the terms of this Agreement will prevail, unless otherwise expressly stated and agreed to in a signed writing by the parties.

21. Notices / Contact of ecobee: Any notice or other communications given under this Agreement shall be in writing and shall be given by delivery in person or by overnight courier service (with signature required) to the address specified for ecobee above and for Customer on the Order and shall be effective upon receipt. ecobee can also be reached by telephone at 1-800-9-ecobee or by facsimile at 1-866-592-7344.

22. Language: It is the express wish of the parties that this Agreement and any related documents be drawn up in the English language. Les parties confirment qu'il est de leur volonté expresse et réciproque que cette convention et tout document qui s'y rattache soient rédigés en anglais.