ETwater Systems Subscription Agreement
This Subscription Agreement ("Agreement") is a legally binding agreement between ETwater Systems, LLC, located at 100 Tamal Plaza, Suite 250, Corte Madera, CA 94925 ("ETwater"), and "you," the "Subscriber" identified on the last page of this Agreement.
Whereas, you have purchased an ETwater irrigation system control device (the "Controller");
Whereas, you wish to obtain from ETwater those services that ET Water provides to purchasers of Controllers (the "ETwater Service") and you understand that ETwater will only provide the ETwater Service to you under the terms of this Agreement; and
Whereas, you understand that you must configure your use of the ET Water Service on your account configuration page (the "Account Page") of the ETwater website located at the URL www.etwater.com (the "Website").
Now, therefore, intending to be legally bound, you agree as follows:
1. Terms of Service. Your Controller can receive instructions and related information via the ETwater Service to allow your Controller to regulate the timing, frequency, and duration of irrigation (collectively, the "Irrigation Schedule"). The ETwater 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 ETwater Service is subject to the terms and conditions of this Agreement. ETwater 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 subscription as provided in Section 13 (Termination of Service). If your Controller accesses the ETwater Service (regardless of your payment or subscription status), you acknowledge and agree that you are a user of the ETwater Service and are bound by the terms of this Agreement.
2. Use. You may access the ETwater Service only with a Controller configured to receive the Irrigation Schedule. You may not resell the ETwater Service or use the ETwater 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 ETwater Service. You agree that your use of the ETwater Service will comply with all applicable laws and regulations.
3. Support and Availability. ETwater will provide you with telephone customer service under ETwater's customer support policy in effect at the time such support is requested, as posted on the Website. ETwater encourages you to check the Website to view the current customer support policy. Notwithstanding ETwater's customer support policies, you understand that the availability of the ETwater Service is subject to scheduled and unscheduled maintenance, downtime due to systems or communications failures, and capacity constraints.
4. Changes to Your ETwater Service. ETwater may, at its discretion and from time to time change, add or remove features and functionality of the ETwater Service or the Controller (when the Controller accesses ETwater's servers) without notice. By using the ETwater Service, you agree to receive all software updates and upgrades that ETwater 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). ETwater reserves the right to discontinue one, some or all of the features of the ETwater Service you receive at any time in its discretion. ETwater 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, ETwater is not required to provide such updates to your Controller. Additionally, the ETwater 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.
5. ETwater's Privacy Policy. When you activate your ETwater Service, you will be asked to provide ETwater with certain information about yourself and the area served by the irrigation system being controlled by your Controller(s) (the "Irrigation Area"), including among other things personally identifiable information such as your name, address, telephone number, and credit card information (collectively, your "Account Information"). ETwater reserves the right to terminate your account if you give ETwater inaccurate or incomplete Account Information. By using the ETwater Service, you agree to the terms and conditions of our Privacy Policy.
6. Security. ETwater 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 ETwater Service and to enter into and perform your obligations under this Agreement.
8. Subscription Fees. You agree to pay your subscription fee for the ETwater Service in advance. Your subscription fee will cover the Irrigation Schedules received via your Controller and the services provided to you via the Website. You have a choice of subscription 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 subscription, you will be charged a reactivation fee. If you are signing up for ETwater Service under a promotional subscription fee, some additional restrictions may apply. Whatever your subscription option, your subscription fee does not include any services, features or functionality other than the ETwater Service.
9. Payment Authorization. If you choose a subscription option with recurring credit card payments, you agree that ETwater may automatically charge the subscription fee to your credit card at the beginning of each period. Your ETwater Service access will not be established until ETwater has verified that the credit card information you provide us for payment is accurate and that your credit card is in good standing. ETwater may, as necessary, extend the expiration date of your credit card in order to ensure continued service. ETwater may, at its discretion, change the ETwater Service fees from time to time, and may charge new fees for features and functionalities that are not currently a part of the ETwater Service. ETwater 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 ETwater's customer service personnel at the customer service number posted on the Website. ETwater reserves the right to suspend or terminate your ETwater 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 ETwater when ETwater 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 ETwater. ETwater reserves the right to refer your account to a third party for collection in the event of an ongoing default.
10. Controller Lifetime Subscription. If you choose to purchase a "Controller Lifetime Subscription," you agree to pay a one time subscription fee that will cover the ETwater Service for the life of the Controller you buy (not your life) or the termination of this Agreement, whichever occurs first. The Controller Lifetime Subscription accompanies the Controller in case of ownership transfer. The subscription remains in effect if the Controller needs to be repaired or replaced due to a malfunction or even if you upgrade your Controller. Because a Controller Lifetime Subscription is linked to a particular Controller, it cannot be transferred to any other Controller, unless the Controller is replaced due to a malfunction covered by the written warranty provided to you by ETwater when you purchased your Controller (the "Controller Warranty"). Each Controller purchased requires its own ETwater Service subscription and activation. Of course, Controllers, like other hardware products, don't last forever and their lifespan will vary. ETwater 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 ETwater 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 ETwater Service.
12. Term. Subject to the termination provisions below, the initial term of this Agreement will begin on the date you sign this Agreement and will continue for the term you chose on the Account Page, including, in the case of a Controller Lifetime Subscription, for the life of the Controller. For any term other than the term of the Controller Lifetime Subscription, 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 ETwater Service, at any time and for any reason or no reason, by contacting ETwater customer service personnel at the customer service number posted on the Website. Notwithstanding anything to the contrary in this Agreement, ETwater 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 (Subscription Fees) and Section 9 (Payment Authorization) are refused for any reason, if you breach any provision in this Agreement, if you misuse the ETwater Service, and/or if you tamper with the Controller or use the ETwater Service in such a manner as to infringe upon the rights of ETwater or any third party. In addition, ETwater 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 ETwater Service before termination. Unused subscription fees are nonrefundable. Sections 8 (Subscription 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 ETwater Service. You received certain software with the purchase of the Controller and other software programs may be provided to you by ETwater from time to time, which you are obligated to accept. Your use of such software is subject to the terms of this Agreement. ETwater retains title to and ownership of all the ET Water software and certain intellectual property rights in the Controller. ETwater also retains ownership of all ETwater copyrights and trademarks. In the case of third party software delivered by ETwater 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 ETwater Service is strictly prohibited.
16. Responsibilities. The ETwater 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 ETwater Service are derived from information applicable to your 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 you regarding your Irrigation Area(s). You understand that (a) because the Weather Data may not be collected at your 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 ETwater 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 ETwater 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 ETwater is not responsible. You agree that ETwater 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 ETwater FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), ARISING OUT OF ALL CLAIMS OR PROCEEDINGS BROUGHT AGAINST ETwater 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 ETwater SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ETwater MAKES NO WARRANTY THAT THE ETwater SERVICE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE ETwater SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES ETwater MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE ETwater SERVICE (INCLUDING ALL IRRIGATION SCHEDULES AND WEATHER DATA), THAT ANY DEFECTS IN THE ETwater SERVICE WILL BE CORRECTED OR THAT THE CONTROLLER OR ETwater SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. ETwater DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE ETwater 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 ETwater'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 ETwater SERVICE OR USE OF THE ETwater SERVICE THROUGH YOUR ACCOUNT BY ANYONE ELSE, EVEN IF ETwater 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 SUBSCRIPTION FEES YOU HAVE PAID TO ETwater 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 ETwater'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 ETwater SERVICE AND THE CONTROLLER. Additionally, this provision is not intended to limit ETwater's liability in the event of ETwater's willful or intentional misconduct. Moreover, if ETwater mistakenly or wrongfully overcharges your account, this section does not limit ETwater's obligation to refund such mistakenly or wrongfully overcharged amounts.
20. Notice. Notice or other communication from you to ETwater 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 ETwater 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 ETwater 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 ETwater Service and supersedes any prior or contemporaneous written or oral statements by ETwater or its representatives or resellers. ETwater's failure to enforce any of the terms of this Agreement shall not constitute a waiver or relinquishment of ETwater's right to do so at any time.
By signing below, you represent that you agree to all the terms of this Agreement. If you are signing this Agreement not on your own individual behalf, but on behalf of an entity, you also represent that you are authorized to agree to all of the terms of this Agreement on behalf of such entity.