WeatherTRAK ET Everywhere™ Service Terms and

HydroPoint ET EverywhereTM Service Terms and Conditions
WeatherTRAK ET Everywhere™ Service Terms and Conditions
WeatherTRAK ET plus™, ET Pro 2™, ET Pro 2 Central™, ET Pro 2 X™, ET Pro2X Central™ and ET Pro2 Smart Water Manager™ Series Controllers
INTRODUCTION: These WeatherTRAK ET Everywhere Terms and Conditions (“Conditions”) apply to a person or entity’s access to and use of HydroPoint’s
WeatherTRAK ET Everywhere™ Service (“Service”). As used in these Conditions,
“HydroPoint” means HydroPoint Data Systems, Inc., and “Customer” means the
customer who is purchasing the Service from HydroPoint under these Conditions.
THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN CUSTOMER AND HYDROPOINT. BY
ACTIVATING OR USING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ ALL
OF THESE TERMS AND CONDITIONS, UNDERSTANDS THEM, AND AGREES TO BE LEGALLY
BOUND BY THEM. If Customer does not agree to these Conditions, it may not activate
or use the Service.
These Conditions, together with any quotation issued to Customer by HydroPoint
(“Quotation”), constitute the entire contract between Customer and HydroPoint
(together, the “Agreement”), and supersede all prior agreements and understandings
between them, whether written or oral, relating to the Service. In the event of a condate that Customer activates the Service. Any purchase orders shall be valid for the purpose of identifying this Agreement for reference purposes only, and any terms included
RENEWAL
HydroPoint Customer Service may contact Customer via email approximately 60 days
before the expiration of Service date providing renewal options. In instances where
direct contact cannot be obtained, a message may be sent to the WeatherTRAK controller that will cause it to start “beeping” at 8:00 am daily until the Service is renewed
or declined.
tion will be conducted:
• Phone contact with the Customer will be attempted to understand the reason for nonrenewal.
• Written notice will also be sent to the Customer notifying of HydroPoint’s intent of
stopping daily weather updates.
• Phone contact will be made by HydroPoint Customer Service instructing the Customer
to select “User no ET” station mode to avoid risk to their landscape as a result of no
longer receiving Service.
• The controller’s radio will be disabled.
hourly service rate.
CUSTOMER SUPPORT CONTACTS
[email protected] • 800-362-8774
OVERVIEW
WeatherTRAK ET EverywhereTM service provides daily, local weather data to every
WeatherTRAK series controller with a paid subscription. Daily weather updates along
with the WeatherTRAK’s patented scheduling engine are the unique components that
provide optimal performance for Smart Water ManagementTM.
Both English and Spanish support is available on the toll-free customer support
number. The initial technical support person will monitor issues and communicate the
status with the Customer. Customer satisfaction with support and the product line is
measured with periodic customer surveys.
Extended summer hours:
Monday thru Friday
Saturday
LENGTH OF SERVICE
The length of WeatherTRAK ET EverywhereTM service can be purchased from HydroPoint
Data Systems Inc, makers of WeatherTRAK Smart Water Management solutions in
renewal periods of 1, 2, 3 and 5 years.
7 am thru 6 pm PDT
9 am thru 2 pm PDT
When daylight savings time changes to standard time:
Monday thru Friday
7 am thru 5 pm PST
Saturday
9 am thru 2 pm PST
The length of Service begins at the time the controller is activated by the Customer
through HydroPoint Customer Service. The subscription will expire after the length
of service purchased and can be renewed by the Customer at any time by contacting
Customer Support.
*Exceptions are Company holidays.*
Customer may contact HydroPoint Customer Support at any time and request the end
of service date as needed.
Hours of operation are subject to change without notice.
SERVICE INCLUSIONS / EXCLUSIONS
Upon activation of the Service and as long as Customer performs the obligations for
the length of Service, HydroPoint will provide the Customer access to the Service as
follows:
• Accurate daily, local weather updates
• Toll-free Customer technical support within stated business hours
• For 2-way subscribers only, access to a secure internet-based Central Internet
Management software providing real-time, remote access to all controllers withinCustomer’s account
ADDITIONAL TERMS AND CONDITIONS
1. Background. Customer’s WeatherTRAK ET™ plus controller (the “Controller”) does
While a subscription for the Service is not required, it is highly recommended in order to enjoy
quoted separately by HydroPoint.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER
ACKNOWLEDGES THAT, DUE TO CAUSES BEYOND HYDROPOINT’S CONTROL, THE
SERVICE IN CERTAIN GEOGRAPHICAL LOCATIONS MAY NOT BE AVAILABLE FROM TIME
TO TIME OR AT ALL.
© 2010 HydroPoint Data Systems, Inc. All rights reserved. WTETET&CO 0410
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2. Term. If Customer elects to subscribe to the Service, an initial trial period of ninety (90)
days shall commence upon Customer’s activation of the Service (“Trial Period”). If Customer
chooses to cancel its subscription for the Service on or prior to the last day of the Trial Period,
Customer will not be charged any subscription fee for use of the Service during the Trial Period.
If Customer’s subscription is not cancelled prior to the end of the Trial Period, Customer’s subscription for the Service shall continue for the remainder of the subscription period selected
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HydroPoint.com
WeatherTRAK ET EverywhereTM Service Terms and Conditions
ADDITIONAL TERMS AND CONDITIONS
2. Term. (Continued)
(“Initial Term”) and Customer shall be obligated to pay the entire subscription fee for the
Initial Term in accordance with Section 4 below. If no subscription period is selected by the
Customer, the default Initial Term is one year. For purposes of determining the duration of the
subscription period, the Initial Term shall begin on the day Customer activates the Service (i.e.,
renewed for successive one-year periods (each a “Renewal Term”) at the end of the Initial
Term unless either party provides at least thirty (30) days written notice of termination of the
Service to the other party prior to the end of the Initial Term or the then-current Renewal Term.
The Initial Term and all Renewal Terms are collectively referred to herein as the “Term.” This
3. Service. Upon activation of the Service and so long as Customer performs its obligations
under this Agreement, HydroPoint shall provide Customer access to the Service during the
Term; provided, however, that HydroPoint shall have no obligation to provide the Service in any
particular geographical location and may discontinue the Service in any geographical location
in its sole discretion.
4. Fees. Unless the subscription fee for the Initial Term of the Service is pre-paid at the time
Customer purchases the Controller, Customer shall pay HydroPoint the applicable subscription fee for the Initial Term, as quoted separately by HydroPoint from time to time in its sole
discretion, within 90 days of activation of the Service and receipt of an invoice from HydroPoint.
All billing and payment will be in United States dollars only. All payments are exclusive of all
taxes, and Customer shall pay any taxes, whether federal, state or local, or municipal that may
be imposed upon or with respect to the Service, exclusive of taxes on HydroPoint’s net income.
Following the Initial Term and for the remainder of the Term, Customer shall pay HydroPoint
the applicable subscription fee for each Renewal Term in an amount determined by HydroPoint
in its sole discretion within 30 days of the commencement such Renewal Term and receipt of
an invoice from HydroPoint; provided, however, that Customer shall not be obligated to pay a
subscription fee for any Renewal Term in excess of the rate quoted by HydroPoint at the time
Customer executes this Agreement unless and until HydroPoint provides Customer with at least
thirty (30) days prior written notice of the increased subscription rate.
5. Responsibilities of Customer.
The Customer shall:
A. Pay all fees and other charges for the Service in accordance with this Agreement.
B. Give at least thirty (30) days written notice of Customer’s desire to terminate the Service
prior to the end of the Initial Term or the applicable Renewal Term.
C. Pay all reasonable costs of collection and expenses including, without limitation, attorneys’
fees, in the event of any default in this Agreement that requires legal action against
Customer by HydroPoint.
6. Default. If Customer fails to pay any amount hereunder when due and such failure
continues unremedied for a period of ten (10) days after notice thereof is given by HydroPoint
to Customer, then HydroPoint shall have the right to exercise any one or more of the following
remedies:
A. Terminate this Agreement and the Service.
B. Declare the entire amount remaining unpaid hereunder for the balance of the then current
Initial Term or Renewal Term, as applicable, at once due and payable, without notice or
demand.
C. Take legal action to recover all payments then accrued or accruing under this Agreement.
D. Pursue any other remedy available at law or in equity, including the termination of the
Service.
7. Exclusion of Damages and Limitation of Liability.
IN NO EVENT SHALL HYDROPOINT OR ITS LICENSORS OR SUPPLIERS, INCLUDING THIRD-PARTY COMPANIES
WHOSE FACILITIES ARE USED IN PROVIDING OR ESTABLISHING TRANSMISSION OF COMMUNICATION UNDER
THIS AGREEMENT OR IN OTHERWISE PROVIDING PRODUCTS OR SERVICES UNDER THIS AGREEMENT OR THE
LIKE OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, BE LIABLE UNDER
THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA OR USE OR DAMAGE TO PROPERTY, PLANTS OR
OTHER FOLIAGE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT,
STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF HYDROPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event will HydroPoint’s liability for any damages, losses and causes of actions
© 2010 HydroPoint Data Systems, Inc. All rights reserved. WTETET&CO 0410
whether in contract or tort (including negligence or otherwise) based upon the Service or in any
way arising under this Agreement exceed the greater of $250.00 or the total amounts paid by the
Customer under this Agreement during the twelve (12) month period immediately preceding the
event giving rise to liability.
8. Disclaimers. THE SERVICE WILL BE PROVIDED “AS IS” AND HYDROPOINT DISCLAIMS
ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON
INFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE
OF PERFORMANCE OR USAGE OF TRADE, AND ALL OTHER OBLIGATIONS AND LIABILITIES OF
HYDROPOINT AND ITS EQUIPMENT MANUFACTURERS WITH RESPECT TO ANY DEFECT OR DEFICIENCY APPLICABLE TO OR RESULTING DIRECTLY OR INDIRECTLY FROM THE SERVICE, WHETHER
IN CONTRACT OR IN TORT OR OTHERWISE. HYDROPOINT DOES NOT REPRESENT THAT USE OF THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. LIABILITY UNDER THIS AGREEMENT SHALL
UNDER NO CIRCUMSTANCES EXCEED THE AMOUNT SET FORTH IN PARAGRAPH 7.A ABOVE FOR
WHICH A WARRANTY CLAIM IS MADE.
9. Binding Nature; Assignment. This Agreement shall be binding upon and inure
may not assign this Agreement or any of its rights under this Agreement to another party or
parties without the prior written consent of HydroPoint.
10. Force Majeure. HydroPoint shall not be liable for failure or delay in performing its
obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage,
unavailability of interruption or delay in telecommunications or third party services, failure of
third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service.
11. Remedies and Severability. Some jurisdictions may limit the exclusion or
limitation or disclaimer of warranties or incidental or consequential damages, so that the
exclusions or limitations or disclaimers in this Agreement may not apply to Customer. In such
liates and agents) shall be limited
to the greatest extent permitted by applicable law. All rights and remedies of HydroPoint
hereunder are cumulative and may be exercised concurrently or separately. If any provision of
this Agreement, or the application of any provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application thereof to persons or circumstances
12. Amendment and Waiver. Except as otherwise provided herein, this Agreement
may not be amended except upon the written consent of Customer and HydroPoint. No failure
to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of
any act or condition hereunder shall not constitute a waiver of the act or condition itself.
13. Entire Agreement. This Agreement, and any other document or agreements
ings or agreements.
14. Governing Law. The laws of the State of California shall apply to all disputes,
claims, or causes of action arising out of or relating to this Agreement or the relationship between
the parties.
15. Survival The parties’ rights and obligations under Sections 4(C), 5, 6, 7, 8, 9, 11, 12,
13, 14, 15 and 16 will survive expiration termination of this Agreement and termination of the
Service.
16. Notices Notices hereunder shall be in writing and sent by overnight commercial
to the party as set forth at the start of this Agreement, and shall be deemed delivered when
cer.
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