IMPORTANT- READ THESE PERSONAL TERMS OF SERVICE (“TERMS OF SERVICE”) BEFORE AGREEING TO PURCHASE A SUBSCRIPTION TO THE ET WATER SMART IRRIGATION SOLUTION SERVICE. YOU ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR ENTITY (“CUSTOMER”) ACKNOWLEDGES THAT CUSTOMER HAS READ AND AGREES TO THESE TERMS OF SERVICE WITH ET WATER SYSTEMS, INC. (“ETWATER”). IF CUSTOMER DOES NOT AGREE WITH THESE TERMS OF SERVICE, DO NOT CLICK THE “SUBSCRIBE” BUTTON AND CUSTOMER WILL NOT BE ABLE TO PURCHASE A SUBSCRIPTION TO THE ETWATER SMART IRRIGATION SUBSCRIPTION SERVICE. THE DATE THAT CUSTOMER AGREES TO THESE TERMS OF SERVICE IS THE “EFFECTIVE DATE.” THESE TERMS OF SERVICE ARE AN AGREEMENT BETWEEN CUSTOMER AND ETWATER.
1. Subscription. Subject to Customer’s payment of the applicable fees during the Term, ETwater will provide Customer with the subscription services to ETwater’s smart irrigation solutions (“Solution”) as set forth in Customer’s online order form (“Order Form”). Customer’s subscription to the Solution includes the provision of certain irrigation system devices and cables (“Controllers”) and customer care support services, as set forth in the Order Form.
2. Licenses and Restrictions. Subject to these Terms of Service, during the Term, ETwater grants to Customer a non-exclusive, non-transferable license to: (i) use the software embedded in each Controller (the “Software”) solely as embedded in the Controller and the Controllers, all solely for internal business use and (ii) use any reports that ETwater provides to Customer, on Customer’s request, for Customer’s internal business use. All other rights in and to the Software, Controller and Solution are hereby reserved. The Controllers, Software, Solution, documentation and the associated copyrights and other intellectual property rights are owned by ETwater or its suppliers, and are protected by law. Except with ETwater’s express prior written consent in each instance, Customer may not copy, modify, decrypt, disassemble, reverse compile or reverse engineer any portion of the Controller or Software, or sell, resell, sub-license, rent, offer on a service bureau or ASP basis, or transfer the Controllers, Software or any associated documentation to any third party. Customer shall not remove any proprietary or other markings or labels from the Controllers, Software or associated documentation.
3. Shipping/Title/Bailment. The number and type of Controllers set forth in the Order Form will be sent Ex Works (Incoterms 2010) to Customer’s location. Notwithstanding the Ex Works shipment method, ETwater retains title to the Controllers and all intellectual property rights in and to the Controllers. The provision of the Controllers to Customer is a subscription and bailment. Customer shall not move the Controllers from the location where they are first installed and Customer shall be responsible for any loss or damages to the Controllers during the Term. Customer shall not cause any liens, security interests, attachments or other encumbrances to be placed on the Controllers.
4. Support Services.
4.1 Support and Updates. As part of Customer’s subscription to the Solution, Customer is entitled to the customer care support services as described at http://www.etwater.com/about-us/customer-care/. As part of the support services, based on Customer’s request to ETwater, ETwater will configure the Controllers to regulate the timing, frequency and duration of irrigation. ETwater may update the Software automatically and remotely. In the event ETwater supplies any update or upgrade to the Software, such update or upgrade will be deemed “Software” under, and will be subject to, these Terms of Service.
4.2 Support Exclusions. ETwater’s support obligations shall be void and of no further effect if a Controller: (i) has been used in violation of these Terms of Service or has been altered or serviced, except by ETwater or ETwater’s authorized service provider; (ii) has not been installed, operated, repaired, or maintained in accordance with ETwater’s written instructions; or (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident. ETwater may change, add or remove features of the Solution at any time, with or without notice to Customer.
5. Controller Data and Privacy. As part of the Solution, the Software includes functionality that remotely connects to ETwater’s networks to enable ETwater to provide the customer care support services. The Software automatically reports to ETwater and/or ETwater’s authorized service provider certain diagnostics, performance metrics, and detection data collected by the Controllers (the “Controller Data”). ETwater uses the Controller Data to provide the Solution and support for the Solution to Customer. ETwater may use all Controller Data to improve the Solution. ETwater collects and uses personally identifiable information as set forth in ETwater’s Privacy Notice available at http://www.etwater.com/privacy.
6. Feedback. If Customer provides any feedback regarding the Controllers, Software and/or Solutions (“Feedback”), Customer assigns all rights in such Feedback to ETwater.
7. Fees and Payment.
7.1 Price. The prices for the subscription to the Solution are as set forth in the applicable Order Form. ETwater reserves the right, at any time, to change its prices and billing methods for renewal terms.
7.2 Payment. Customer expressly agrees that ETwater is permitted to bill Customer the applicable fees, any applicable tax and any other charges that Customer may incur with ETwater in connection with Customer’s subscription to the Solution. Customer agrees that the fees will be billed to the credit card account Customer provides in accordance with the billing terms in effect at the time a fee or charge is due and payable. Currently all fees are to be paid on a monthly basis in advance of each month. If payment is not received or cannot be charged to Customer’s credit card account for any reason in advance, ETwater reserves the right to either suspend or terminate Customer’s order. All fees are non-refundable.
7.3 Electronic Communications. By using the Solution, Customer consents to receiving electronic communications from ETwater. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Solution. These electronic communications are part of Customer’s relationship with ETwater and Customer receives them as part of Customer’s subscription to the Solution. Customer agrees that any notices, agreements, disclosures or other communications that ETwater sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
8. Disclaimer. The Solution provides the Controller with the ability to automatically regulate Customer’s irrigation system by providing periodic irrigation schedules to the Controller. However, the irrigation schedules provided by the Solution are derived from information applicable to Customer’s general area regarding, among other things, temperature, humidity, wind speed, solar radiation, and precipitation obtained from ETwater’s own weather stations and from third parties (collectively, “Weather Data”), and from information supplied by Customer through the customer care support services regarding Customer’s irrigation areas. Customer acknowledges that (a) because the Weather Data may not be collected at Customer’s specific irrigation area(s), ETwater 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 Solution to adjust any irrigation schedule, (c) Customer is solely responsible for monitoring the watering and health of Customer’s irrigation area(s); and (d) if Customer notices any overwatering or underwatering of Customer’s irrigation area(s), Customer must contact ETwater to adjust the schedule. Customer acknowledges and agrees that use of the Solution is not a substitute for Customer’s careful monitoring of plant and soil conditions to ensure that Customer’s 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 ETwater is not responsible. Customer agrees that ETwater will have no liability to Customer or anyone else using Customer’s account with regard to any irrigation schedule or whether any irrigation area(s) receive appropriate irrigation. THE CONTROLLER, SOFTWARE AND SOLUTION ARE PROVIDED ON AN “AS-IS” BASIS. ETWATER AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE CONTROLLER, SPECIFICATIONS, SUPPORT OR SOLUTION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. Indemnification. Customer will, at its expense, defend any suit brought against ETwater based upon a third party claim arising out of or related to Customer’s use of the Controllers (other than with respect to any matters for which ETwater indemnifies Customer below).
10. Liability Limitations. TO THE GREATEST EXTENT ALLOWED BY LAW: THE COLLECTIVE LIABILITY OF ETWATER AND ITS THIRD PARTY SUPPLIERS UNDER THESE TERMS OF SERVICE WILL BE LIMITED TO THE AMOUNT PAID FOR THE CONTROLLER AND/OR SOLUTION IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY AND NEITHER ETWATER NOR ITS THIRD PARTY SUPPLIERS WILL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR CONTROLLER LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Term and Termination
11.1 Term. These Terms of Service shall commence on the Effective Date and shall continue for the initial service term specified in the Order Form (the “Initial Subscription Term”). The Initial Subscription Term will automatically renew for additional renewal terms of one (1) year each at ETwater’s then-current pricing at the time of renewal, unless either party notifies the other party in writing of its intent not to renew at least sixty (60) days in advance of the expiration of the Initial Subscription Term or renewal term. The Initial Subscription Term together with any renewal term(s) are the “Term.”
11.2 Termination. ETwater or Customer may terminate these Terms of Service at any time for the other party’s breach of these Terms of Service that has not been cured by the other party within thirty (30) days of the date of the non-breaching party’s written notice of the alleged breach. Without limiting any of ETwater’s remedies at law or equity, if Customer breaches any term of these Terms of Service, ETwater may repossess, retake and/or retain any or all of the Controllers free of all rights and claims of Customer without notice, without legal process, or judicial intervention, and without releasing Customer of any term, covenant or condition provided herein. Customer shall pay all ETwater legal fees and all other costs and expenses incurred by reason of any breach of these Terms of Service by Customer. In the event ETwater shall repossess or retake the Controllers, and there shall be in or attached to such Controllers any property owned by, or in the custody or control of Customer, then ETwater is hereby authorized to take possession of such property for a period of ten (10) days. Thereafter, if any such property is not claimed and taken by Customer within ten (10) days after ETwater repossesses or retakes the Controllers, such property will be deemed abandoned by Customer, and ETwater shall have the right to dispose of it as ETwater sees fit in its sole discretion.
11.3 Effect of Termination. Upon termination of these Terms of Service for any reason other than ETwater’s material uncured breach, Customer’s continuing obligations for payments for the rest of the current Term shall accelerate and be due immediately. If Customer requests the right to terminate the Term early for convenience, Customer will also pay an early termination fee of $249.00 per Controller in Customer’s possession. Such payment is a reasonable estimate of the damages to ETwater for such early termination and is not a penalty. On any termination of these Terms of Service, ETwater will no longer be obligated to provide the Solution and Customer shall work with ETwater to promptly arrange for the return the Controller(s) to ETwater at Customer’s expense, in packaging as instructed by ETwater and in the same condition as received, less reasonable wear and tear only. Sections 5, 6, 7 (for fees that accrued prior to termination or as set forth in Section 7), 8, 9, 10, 11.3 and 12 shall survive the termination or expiration of these Terms of Service.
12. General Provisions
12.1 General. These Terms of Service are the entire agreement between the parties regarding it subject matter and these Terms of Service supersede all prior or contemporaneous agreements on its subject matter. These Terms of Service may only be modified in a writing signed by both parties. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Controllers. Customer agrees that it will comply with all export control laws and regulations. These Terms of Service may not be assigned by Customer (by merger, operation of law or otherwise) except with the express prior written consent of ETwater. The failure of either party to enforce at any time or for any period any of the provisions of these Terms of Service will not be construed to be a waiver of those provisions or of the right of that party thereafter to enforce each and every provision hereof. If any provision hereof is found invalid or unenforceable, that part shall be amended to achieve as nearly as possible the same effect as the original provision and the remainder of these Terms of Service shall remain in full force and effect. These Terms of Service shall be construed in accordance with the laws of the State of California, without regard to that body of law controlling conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service. Any legal action arising under these Terms of Service will be brought exclusively in the State and Federal courts located in San Francisco, California, and the parties irrevocably consent to the jurisdiction and venue of such courts and waive any objection to such courts’ exercise of personal jurisdiction.
12.2 Confidentiality Obligations. Each party as ‘Recipient’ agrees (a) that it shall treat such Confidential Information as a trade secret of the ‘Disclosing Party’, (b) not to disclose or use any of such Confidential Information for any purpose except as necessary to perform its obligations under these Terms of Service, (c) to limit the use of and access to such Confidential Information to such employees who have a need to know such Confidential Information, and (d) that it will promptly notify the other party in writing of any unauthorized disclosures and/or use thereof. The aforementioned notice shall include a detailed description of the circumstances of the unauthorized disclosure or use and the parties involved therewith. “Confidential Information” means all non-public information that the party disclosing the information (the “Disclosing Party”) designates at the time of disclosure as being confidential, or if disclosed orally or visually is identified as such prior to disclosure and summarized, in writing, by the Disclosing Party to the receiving party (the “Recipient”) within thirty (30) days, or which, under the circumstances surrounding disclosure, the Recipient knows or has reason to know should be treated as confidential without the need to be marked as “confidential”, including without limitation, these Terms of Service, and information regarding either party’s financial condition, business opportunities, plans for development of future Controllers or new versions of existing Controllers, know-how, technology or customers. Each party as Recipient shall have no obligation to keep confidential information that (a) is known through no improper means to Recipient at the time of disclosure, as evidenced by documentation in the Recipient’s possession at the time of such disclosure, (b) is independently developed by Recipient (provided Recipient can show that such development was accomplished by or for Recipient without the use of or any reference to Confidential Information), (c) becomes rightfully known to Recipient from another source without restriction on subsequent disclosure or use, or (d) is or becomes part of the public domain through no wrongful act of Recipient. Recipient may disclose Confidential Information pursuant to any authorized judicial or governmental request, requirement or order, provided that Recipient takes reasonable steps to give Disclosing Party sufficient notice to contest such request, requirement or order and/or seek a protective order therefor. Any such disclosure by Recipient of the Confidential Information of Disclosing Party, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that Disclosing Party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, threatened or actual. In any event of termination or expiration of these Terms of Service, each party will promptly return to the other party such party’s Confidential Information in its possession or control, or destroy such Confidential Information and certify as to such destruction in writing.
12.3 U.S. Government Restricted Rights. If the Controller is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, Customer agrees that the Controller is delivered as: a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data – Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); b) as a “commercial item” as defined in FAR 2.101; or c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Controller by the Department of Defense shall be subject to the Terms of Service set forth in these Terms of Service as provided in DFARS 227.7202 (Oct 1998). All other use, duplication and disclosure of the Software and related documentation by the United States shall be subject to the Terms of Service set forth in these Terms of Service and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data — General Alternative III (Jun 1987). Contractor/licensor is ET Water Systems, Inc. at 3 Hamilton Landing, Suite 240, Novato, CA 94949.