Terms of Service
Please review the following terms and indicate your agreement below.
ET Water Systems Service Agreement
PLEASE READ THIS AGREEMENT CAREFULLY, YOU MUST AGREE TO ITS TERMS BEFORE USING THE ET WATER SERVICE.
This Service Agreement (“Agreement”) is a legally binding agreement between ET Water Systems, Inc,, located at 3 Hamilton Landing, Suite 240, Novato, CA 94949 (“ET Water”), and “you,” the “Subscriber” identified on the account page (the “Account Page”) of our website at www.etwater.com (the “Website”), which you are using to configure your use of the service that ET Water provides (the “ET Water Service”) in connection with your ET Water irrigation system control device (the “Controller”). BY USING THE ET WATER SERVICE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CLICK “CANCEL” BELOW.
1. Terms of Service. Your Controller can receive instructions and related information via the ET Water Service to allow your Controller to regulate the timing, frequency, and duration of irrigation (collectively, the “Irrigation Schedule”). The ET Water Service consists of the periodic automatic downloading of an Irrigation Schedule from ET Water’s servers to your Controller. Your activation and continued use of the ET Water Service is subject to the terms and conditions of this Agreement. ET Water may at its discretion change the terms of this Agreement. Such changes shall be effective upon notification by ET Water. If you are dissatisfied with any changes to this Agreement, you may cancel your ET Water Service as provided in Section 13 (Termination of Service). If your Controller accesses the ET Water Service (regardless of your payment or service status), you acknowledge and agree that you are a user of the ET Water Service and are bound by the terms of this Agreement.
2. Use. You may access the ET Water Service only with a Controller configured to receive the Irrigation Schedule. You may not resell the ET Water Service or use the ET Water Service on behalf of any individual or entity other than you, whether in the nature of an outsourcing service or otherwise. Except as expressly provided in this Agreement, you may not transfer the ET Water Service. You agree that your use of the ET Water Service will comply with all applicable laws and regulations.
3. Support and Availability. ET Water will provide you with telephone customer service under ET Water’s customer support policy in effect at the time such support is requested, as posted on the Website. ET Water encourages you to check the Website to view the current customer support policy. Notwithstanding ET Water’s customer support policies, you understand that the availability of the ET Water Service is subject to scheduled and unscheduled maintenance, downtime due to systems or communications failures, and capacity constraints.
4. Changes to Your ET Water Service. ET Water may, at its discretion and from time to time change, add or remove features and functionality of the ET Water Service or the Controller (when the Controller accesses ET Water’s servers) without notice. By using the ET Water Service, you agree to receive all software updates and upgrades that ET Water sends to your Controller. If you are dissatisfied with any such changes, you may terminate this Agreement in accordance with Section 13 (Termination of Service). ET Water reserves the right to discontinue one, some or all of the features of the ET Water Service you receive at any time in its discretion. ET Water may, at its discretion, discontinue the provision of software updates to certain Controllers. This means that while other Controllers may receive continued software updates and functionality, ET Water is not required to provide such updates to your Controller. Additionally, the ET Water Service may not be the same on each Controller; a given Controller may support different features and functionality, and ET Water is under no obligation to provide all features and functionality to all Controllers.
6. Security. ET Water uses industry standard means to secure its servers and its communications with you. You acknowledge that ET Water cannot guarantee security over the Internet. It is your responsibility to take appropriate precautions to protect and preserve your computers, equipment, and data.
7. Eligible Subscribers. You represent and warrant you are at least 18 years of age and that you are properly authorized to subscribe to the ET Water Service and to enter into and perform your obligations under this Agreement.
8. Service Fees. You agree to pay your service fee for the ET Water Service in advance. Your service fee will cover the Irrigation Schedules received via your Controller and the services provided to you via the Website. You have a choice of service options that may change over time. You may switch options at the end of each period. If for any reason you need to reactivate your ET Water Service, you will be charged a reactivation fee. If you are signing up for ET Water Service under a promotional service fee, some additional restrictions may apply. Whatever your service option, your service fee does not include any services, features or functionality other than the ET Water Service.
9. Payment Authorization. If you choose a service option with recurring credit card payments, you agree that ET Water may automatically charge the service fee to your credit card at the beginning of each period. Your ET Water Service access will not be established until ET Water has verified that the credit card information you provide us for payment is accurate and that your credit card is in good standing. ET Water may, as necessary, extend the expiration date of your credit card in order to ensure continued service. ET Water may, at its discretion, change the ET Water Service fees from time to time, and may charge new fees for features and functionalities that are not currently a part of the ET Water Service. ET Water will notify you 30 days in advance of any fee changes or new fees; you may obtain the fees currently in effect at any time by contacting ET Water’s customer service personnel at the customer service number posted on the Website. ET Water reserves the right to suspend or terminate your ET Water Service without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to ET Water when ET Water believes you are liable for the charges. You agree to pay a late charge on all amounts due which remain unpaid for 30 days. The late charge will equal 1.5% of the past due amount, or the highest rate allowed by law, per month until paid. Such rights are in addition to and not in lieu of any other legal right or remedies available to ET Water. ET Water reserves the right to refer your account to a third party for collection in the event of an ongoing default.
10. Controller Warranty. This Agreement remains in effect if your Controller needs to be repaired or replaced due to a malfunction or if you upgrade your Controller. Because a service agreement is linked to a particular Controller, it cannot be transferred to any other Controller, unless your Controller is replaced due to a malfunction covered by the written warranty provided to you by ET Water when you purchased your Controller (the “Controller Warranty”). Each Controller purchased requires its own ET Water Service agreement and activation. Of course, Controllers, like other hardware products, don’t last forever and their lifespan will vary. ET Water makes no warranties or representations as to the expected lifetime of the Controller, aside from the Controller Warranty.
11. Access Charges. You are responsible for providing, at your own expense, all hardware, system software, access devices, networks, and telecommunications and other connections required for access to the Website and servers. You are responsible for any telephone or other charges incurred as a result of using or accessing the ET Water Service and acknowledge and agree that you shall be solely responsible for all disputes with any telephone company or Internet service provider related to the same and paying all telephony and other costs (including costs of data transmission) associated with such access, and for all costs you incur in using the ET Water Service.
12. Term. Subject to the termination provisions below, the initial term of this Agreement will begin on the date you click the “I AGREE” button below and will continue for the term you chose on the Account Page. The term will be renewed automatically, unless the Agreement is terminated prior to the expiration of the term in accordance with the termination provisions below.
13. Termination of Service. You may terminate your account, this Agreement, and your right to use the ET Water Service, at any time and for any reason or no reason, by contacting ET Water customer service personnel at the customer service number posted on the Website. Notwithstanding anything to the contrary in this Agreement, ET Water retains the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if the charges to your credit card for the fees described in Section 7 (Service Fees) and Section 9 (Payment Authorization) are refused for any reason, if you breach any provision in this Agreement, if you misuse the ET Water Service, and/or if you tamper with the Controller or use the ET Water Service in such a manner as to infringe upon the rights of ET Water or any third party. In addition, ET Water reserves the right to terminate your account and this Agreement for any other reason if ET Water gives you at least 30 days advance notice.
14. Effect of Termination. Upon any termination of your account, this Agreement will terminate and you will remain obligated to pay all outstanding fees and charges relating to your use of the ET Water Service before termination. Unused service fees are nonrefundable. Sections 8 (Service Fees) through 11 (Access Charges) and Sections 14 (Effect of Termination) through 23 (Miscellaneous) shall survive any termination of this Agreement for any reason.
15. Title to Software and Intellectual Property. You may need to use certain software programs to use or have full access to certain features of the ET Water Service. You received certain software with the purchase of the Controller and other software programs may be provided to you by ET Water from time to time, which you are obligated to accept. Your use of such software is subject to the terms of this Agreement. ET Water retains title to and ownership of all the ET Water software and certain intellectual property rights in the Controller. ET Water also retains ownership of all ET Water copyrights and trademarks. In the case of third party software delivered by ET Water to the Controller, the applicable third party retains title to and ownership of its software, copyrights and trademarks. Any attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use for other purposes the Controller, the Website, or software used in connection with the ET Water Service is strictly prohibited.
16. Responsibilities. The ET Water Service gives your Controller the ability to automatically regulate your irrigation system by providing periodic Irrigation Schedules to your Controller. However, the Irrigation Schedules provided by the ET Water Service are derived from information applicable to your general area regarding, among other things, temperature, humidity, wind speed, solar radiation, and precipitation obtained from ET Water’s own weather stations and from third parties (collectively, “Weather Data”), and from information supplied by you regarding your Irrigation Area(s). You understand that (a) because the Weather Data may not be collected at your specific Irrigation Area(s), ET Water cannot guarantee the accuracy of any Weather Data or the appropriateness of any Irrigation Schedule; (b) the Weather Data may change too quickly for the ET Water Service to adjust any Irrigation Schedule, (c) you are solely responsible for monitoring the watering and health of your Irrigation Area(s); and (d) if you notice any overwatering or underwatering of your Irrigation Area(s), you should adjust the Irrigation Schedule as necessary using the tools provided on the Website. You acknowledge and agree that use of the ET Water Service is not a substitute for your careful monitoring of plant and soil conditions to ensure that your Irrigation Area(s) receive an appropriate amount of water. Local weather and geographic effects, special soil conditions or plant needs, errors in Weather Data or configuration data, mechanical or data transmission failures, losses of utilities, and other factors may result in delivery of improper amounts of water for which ET Water is not responsible. You agree that ET Water will have no liability to you or anyone else using your account with regard to any Irrigation Schedule or whether any Irrigation Area(s) receive appropriate irrigation.
17. Indemnity. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ET WATER FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), ARISING OUT OF ALL CLAIMS OR PROCEEDINGS BROUGHT AGAINST ET WATER OR ITS AFFILIATES, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE OR INFRINGEMENT OF THIRD PARTY RIGHTS, RELATING TO OR ARISING OUT OF YOUR BREACH OF ANY TERM OF THIS AGREEMENT, YOUR MISUSE OF THE ET WATER SERVICE, YOUR UNAUTHORIZED MODIFICATION OR ALTERATION OF THE CONTROLLER OR RELATED SOFTWARE, OR IN JURIES TO THIRD PARTIES RESULTING FROM IMPROPER WATERING BY ANY OF YOUR IRRIGATION SYSTEMS.
18. Warranty Disclaimer. YOU UNDERSTAND AND AGREE THAT, OTHER THAN THE CONTROLLER WARRANTY, THE ET WATER SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ET WATER MAKES NO WARRANTY THAT THE ET WATER SERVICE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE ET WATER SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES ET WATER MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE ET WATER SERVICE (INCLUDING ALL IRRIGATION SCHEDULES AND WEATHER DATA), THAT ANY DEFECTS IN THE ET WATER SERVICE WILL BE CORRECTED OR THAT THE CONTROLLER OR ET WATER SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. ET WATER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE ET WATER SERVICE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. Because some jurisdictions do not permit the exclusion of implied warranties, this disclaimer may not apply to you.
19. Limitations of ET Water’s Liability. IN NO EVENT WILL ET WATER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF ACCOUNT INFORMATION, LOSS OF DATA, DAMAGE TO IRRIGATION AREAS OR OTHER REAL PROPERTY, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE ET WATER SERVICE OR USE OF THE ET WATER SERVICE THROUGH YOUR ACCOUNT BY ANYONE ELSE, EVEN IF ET WATER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL ET WATER’S TOTAL CUMULATIVE LIABILITY (AGGREGATING ALL CLAIMS OVER TIME) TO YOU AND ANYONE WHO USES THE ET WATER SERVICE THROUGH YOUR ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AMOUNT OF SERVICE FEES YOU HAVE PAID TO ET WATER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY IS DETERMINED. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. YOU UNDERSTAND THAT THESE LIMITATIONS OF ET WATER’S LIABILITY REPRESENT A FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE A MATERIAL INDUCEMENT TO ET WATER ENTERING INTO THIS AGREEMENT, AND THAT ET WATER HAS TAKEN THIS ALLOCATION OF RISK INTO ACCOUNT IN PRICING THE ET WATER SERVICE AND THE CONTROLLER. Additionally, this provision is not intended to limit ET Water’s liability in the event of ET Water’s willful or intentional misconduct. Moreover, if ET Water mistakenly or wrongfully overcharges your account, this section does not limit ET Water’s obligation to refund such mistakenly or wrongfully overcharged amounts.
20. Notice. Notice or other communication from you to ET Water may be given by conventional first-class mail from you or your authorized agent or by electronic mail (e-mail) with receipt request from the e-mail address specified for you on the Account Page. An e-mail appearing to be from the e-mail address specified for you on the Account Page establishes you as its originator and has the same effect as a document with your written signature on it. Notice or other communication from ET Water to you may be given by conventional first-class mail or by e-mail with receipt request to the relevant address specified for you on the Account Page. All notice will be effective upon receipt.
21. Force Majeure. Except for your obligations to pay ET Water hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation earthquakes, loss of utilities, terrorism, war, or other disasters.
22. Governing Law and Forum. This Agreement will be governed by the laws of the State of California as such laws apply to agreements between California residents performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in San Francisco, California, and the parties hereby irrevocably consent to the jurisdiction and venue of such courts and waive any objection to such courts’ exercise of personal jurisdiction over them.
23. Miscellaneous. If any provision of this Agreement is held by a court to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect, and such court shall be empowered to modify said provision or substitute provisions similar to said provision or other provisions, so as to provide the parties the benefits intended by said provision, to the fullest extent permitted by applicable law. The official text of this Agreement or notice submitted hereunder shall be in English. In the event any dispute concerning the construction or meaning of this Agreement, reference shall be made only to this Agreement as written in English and not to any translation into another language. This document represents the entire agreement governing your use of the ET Water Service and supersedes any prior or contemporaneous written or oral statements by ET Water or its representatives or resellers. ET Water’s failure to enforce any of the terms of this Agreement shall not constitute a waiver or relinquishment of ET Water’s right to do so at any time.
BY USING THE ET WATER SERVICE, I REPRESENT THAT I HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT AND I AGREE TO ALL THE TERMS OF THIS AGREEMENT AS STATED ABOVE.
By clicking “I Agree” you agree and consent to the ETwater Service Agreement