These terms and conditions govern the provision of services offered / provided by Water-Tite, related to its monitoring products, and such provision of services is conditioned on Buyer’s assent to these terms. These terms and conditions supplement IPS Diversified Products’ Terms and Conditions of Sale. Each offer is valid for 30 days from the date of the offer unless extended, modified or withdrawn in writing by Water-Tite.
1. DEFINITIONS Whenever used in this document with initial capitalization, the following definitions shall be applicable:
A. “Agreement” or “Contract” shall mean the Water-Tite form, the terms and conditions stated herein, Buyer’s purchase order, if any, (excluding any preprinted terms and conditions on said purchase order and in any attachment or attachments to said purchase order) or other document evidencing acceptance of the Water-Tite offer as set forth in the form; or an integrated agreement signed by Water-Tite and Buyer “Monitoring Services”.
B. “Data” shall mean any process information, alarms, notifications, reports, and user commands, organized, transmitted and/or generated by the Buyer’s use of the monitoring service.
C. “Device” shall mean the equipment used by the Buyer to send/receive wireless transmissions on the Network, including any wireless modem, SIM (Subscriber Identity Module) Card, and any accessories or related equipment.
D. “Monitoring Services” shall mean the communications, data storage, notifications and Web based user interface provided by Water-Tite and its suppliers.
E. “Network” shall mean those integrated mobile switching facilities, data routers, servers, cell sites, and any other related facilities or equipment used to provide Monitoring Services.
F. “Professional Services” shall mean (i) technical information provided by Water-Tite including data interpretation and reports, (ii) advice and consultation given to Buyer by a Water-Tite technician or sales person.
G. “Buyer” shall mean the individual or entity purchasing and / or using Monitoring Services, as well as any other owners of the dwelling or facility where the Monitoring Services are to be provided.
H. “Water-Tite Proposal & Information Form” (hereinafter the “Form” or “Offer”) shall mean the Water-Tite Form for execution by Buyer detailing the services purchased / utilized, the price and the effective date of the agreement.
I. “Water-Tite” shall mean Water-Tite Products, Inc. or an affiliated company and their subsidiaries, successors and assigns. Water-Tite may be referred to herein as “Seller”.
J. “Site” shall mean each of the Buyer’s dwelling or facilities to be monitored.
K. “Supplier” shall mean any subcontractor or supplier of any tier who supplies goods, facilities, and services to Water-Tite in connection with the obligations of Water-Tite under the Agreement. 07/2023
L. “Work” shall mean the Monitoring Services supplied by Water-Tite under the Agreement.
2. SCOPE Water-Tite will furnish Monitoring Services as specified in the Form and pursuant to the Agreement.
3. PRICE The Water-Tite offer and prices (as the case may be) are firm for Monitoring Services which are scheduled to be performed for the period selected in the offer. The period of service begins upon the customer’s request for activation of the individual site. At the conclusion of the original agreement period of service, the Agreement shall renew automatically for subsequent additional (1) one month periods of service, unless canceled prior to the expiration of the then current period of service, as more fully set forth below in Section “Water-Tite BILLING & CANCELLATION POLICY”. At any time prior to renewal, Water-Tite may upon 30 days written notice, establish new prices for Monitoring Services.
4. TERMS OF PAYMENT
A. As applicable, Water-Tite shall at the time of activation and subsequent renewals, invoice Buyer for the full value of the services purchased as stated in the Agreement.
B. Payments are thirty (30) days net from date of invoice.
C. Any past due amounts shall, without prejudice to the right of Water-Tite to payment when due, bear interest at a rate of 1.5% per month or the highest rate allowed by law, whichever is lower. If payments are not made when due, then Water-Tite may, upon fifteen (15) days written notice and at its option, suspend all further Work hereunder. Resumption of Work thereafter is contingent upon correction of the payments deficiency. The schedule for the resumed Work will be established by Water-Tite based on its then current work load and the availability of other resources.
All Water-Tite expenses associated with any such suspension and resumption of services shall be for the account of Buyer.
5. BUYERS REPRESENTATIONS
A. Buyer is responsible for the content of any and all data transmitted over the Network.
B. Buyer understands that Buyer, Water-Tite or any other third party authorized and directed by the Buyer may, through the website, execute changes to Buyers system configuration. The Buyer shall be solely responsible for changes executed by the Buyer, Water-Tite or any other third party. Water-Tite shall not be responsible for or have any direct or indirect liability for any incorrect or incomplete system configuration, nor shall Water-Tite be responsible for any direct or indirect consequences resulting from the execution of such changes.
C. Buyer understands that Buyer, Water-Tite or any other third party authorized and directed by Buyer may, through the website execute a manual override to the operation of equipment or execute parameter changes affecting the operation of equipment on the Buyer’s site. The Buyer shall be solely responsible for the execution of manual overrides or equipment parameter changes executed by Buyer, Water-Tite or third parties authorized and directed by Buyer. 07/2023 Water-Tite shall have no direct or indirect liability for the consequences of any manual override or equipment parameter changes executed.
D. Ownership of Numbers. Buyer acknowledges that subject to FCC number portability rules, Buyer shall not have or acquire any property right in any specific Subscriber Identity Module (SIM) number provided by Water-Tite.
E. Buyer acknowledges that Water-Tite will not with its own employees, respond to or take action related to those events for which Water-Tite is providing monitoring and notifications Services.
F. Buyer understands it is responsible for ongoing, testing, periodic maintenance, calibration and functionality of the equipment to be monitored, and should immediately notify Water-Tite if any failures are identified. Water-Tite shall use all reasonable efforts to assist the Buyer in identification of any perceived failures, but in no case is Water-Tite obligated to visit the Buyers site to troubleshoot or provide remedy.
G. Buyer acknowledges that Water-Tite reserves the right to suspend Monitoring Services on any Site that generates excessive data or false messages in any thirty day period. Water-Tite may take the monitoring of a specific site out of service until Water-Tite and the Buyer have made alternate arrangements or the Buyer has corrected the cause of the false and excessive messages. In such event Water-Tite shall make reasonable efforts to notify Buyer. Water-Tite shall not be responsible and shall have no direct or indirect liability for any false, incomplete or incorrect messages.
H. The Buyer acknowledges that Water-Tite may, pursuant to the description of services as set forth in the Form, invoice Buyer for excessive use events.
I. Buyer further understands and agrees that Monitoring Services are intended only to monitor and provide notice to Buyer of conditions relating to Buyer’s non-critical mechanical and electrical equipment and are not intended to be used as a primary life-safety, security, fire detection and alarm system.
6. PERMITTED OUTAGES
Water-Tite is not responsible for the following outages (hereinafter, the “Permitted Outages”)
A. Periods of scheduled maintenance and emergency unscheduled maintenance.
B. Periods the Monitoring Service is not available for the Buyer’s use due to (i) the inoperability of the Buyer’s equipment, Buyer’s network connectivity, or (ii) the negligent actions or omissions, willful misconduct of Buyer, its employees, consultants, or third party agents acting on behalf of the Buyer.
C. Periods the Monitoring Service is not available for Buyer’s use due to Network coverage limitations and outages and coverage gaps or other Monitoring Service interruptions attributable to other Suppliers or carriers and its network including scheduled maintenance.
D. Periods the Monitoring Service is not available for the Buyer’s use as a result of suspension of the Monitoring Services as a result of a breach of this Agreement by Buyer, including nonpayment of amounts owed or unlawful or improper use of the Monitoring Services. 07/2023
E. Periods the Monitoring Service is not available for Buyer’s use as a result of (i) widespread, common failure or failures of Devices that affects the Monitoring Service; or (ii) hostile network attacks by any third party, including a customer of the Buyer, that are directly (in whole or in part) attributable to Device vulnerabilities.
F. Failure of cellular provider to maintain, support, and/or maintain the cellular system supporting the Monitoring Service. Water-Tite shall not be liable for suspension of cellular services in any manner whatsoever.
G. Class Action Waiver – Buyer and Water-Tite agree that claims may be asserted against each other solely in their individual capacities and Buyer agrees that Buyer shall not serve as a Plaintiff or Class Member in any purported class or representative action in any claim against Water-Tite.
7. SERVICES WARRANTY DISCLAIMER
THE MONITORING SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” / WHERE IS, AND “AS AVAILABLE” AND Water-Tite DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Water-Tite MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE MONITORING SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE MONITORING SERVICES SHALL BE BORNE SOLELY BY BUYER. Water-Tite MAKES NO WARRANTY THAT THE MONITORING SERVICES WILL BE COMPLETELY SECURE, ERROR FREE, WITHOUT INTERRUPTIONS OR MEET BUYER’S REQUIREMENTS. Water-Tite DOES NOT REPRESENT THE MONITORING SERVICES AS SUITABLE FOR AUTOMATED CONTROL OF ANY EXTERNAL EQUIPMENT. USE OF THE MONITORING SERVICES FOR THIS PURPOSE IS SOLELY AT BUYERS OWN RISK. THE MONITORING SERVICES MAY BE USED TO MANUALLY EXECUTE CHANGES TO THE OPERATION OF EXTERNAL EQUIPMENT AT THE BUYER’ SITE. Water-Tite STRONGLY RECOMENDS THAT BUYER MAKE ALTERNATE ELECTRICAL OR MECHANICAL PROVISIONS AT THE EQUIPMENT SITE THAT WILL MITIGATE, OR REDUCE THE RISK ASSOCIATED WITH THE MONITORING SYSTEM’S FAILURE TO EXECUTE SUCH CHANGES. Water-Tite SHALL HAVE NO LIABILITY FOR A FAILURE OF EXTERNAL EQUIPMENT FOR ANY REASON WHATSOEVER UNDER ANY CIRCUMSTANCES WHATSOEVER. THE WARRANTIES PROVIDED BY Water-Tite AS SET FORTH IN THIS ARTICLE 7 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE).
8. TAXES
The price paid or to be paid to Water-Tite under the Agreement does not include any federal (other than federal income taxes imposed on Water-Tite), state, or local property, license, privilege, sales, use, excise, telecommunications, utility, value added, gross receipts, or similar taxes now or hereafter applicable to, measured by, or imposed upon or with respect to the transaction, or any services performed in connection therewith. Buyer shall be solely responsible for the payment and agrees to pay or reimburse Water-Tite for any such taxes which Water-Tite or its Suppliers are required to pay. 07/2023
9. BUYER INDEMNITY
Buyer agrees to indemnify and hold Water-Tite and its Suppliers harmless from and against all claims, damages, lawsuits, and losses related to, concerning or arising out of Buyers use of the Monitoring Services provided by Water-Tite under this Agreement.
10. ACT OF NATURE
Water-Tite will not be liable for failure to perform any obligation or delay in performance resulting from or contributed to by any cause beyond the reasonable control of Water-Tite or its Suppliers or from any act of God, act of civil or military authority, act of war whether declared or undeclared, act (including delay, failure to act, or priority) of any governmental authority or Buyer, act of terrorism, civil disturbance, insurrection or riot, sabotage, fire, pandemic, inclement weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, major equipment breakdown, or failure or delay beyond its reasonable control.
11. TERMINATION
Buyer may, upon prior notice to Water-Tite, terminate the Monitoring Services or any remaining portion thereof under the Agreement. The Monitoring Services will then terminate at the end of the Buyer’s current paid billing cycle. Water-Tite shall have the right to terminate the Agreement immediately in the event of a material breach of the Agreement by the Buyer.
12. SUSPENSION
Buyer may, upon prior notice to Water-Tite and payment of reasonable and proper suspension and reactivation charges, suspend the scheduled Monitoring Services or portions thereof under the Agreement for a defined period of service. Suspension charges will include any reactivation charges at the time services are resumed. All suspension charges shall be due immediately upon receipt of the Water-Tite invoice. Should the suspension exceed a period of three (3) months, at the option of Water-Tite, the Agreement or any portions thereof may be deemed to have been terminated by Buyer.
13. PROPRIETARY INFORMATION
A. Water-Tite may have a proprietary interest in information that may be furnished pursuant to the Agreement. Buyer will keep in confidence and will not disclose any such information which is specifically designated as being proprietary to Water-Tite, without the prior written permission of Water-Tite or use any such information for other than the purpose for which it is supplied. The provisions of this paragraph shall not apply to information, notwithstanding any confidential designation thereof, which is known to Buyer without any restriction as to disclosure or use at the time it is furnished, which is or becomes generally available to the public without breach of any agreement, or which is received from a third party, including Buyer’s subsidiaries or affiliates, without limitation or restriction on said third party or Buyer at the time of disclosure.
B. Water-Tite also has a proprietary interest in (i) the Form, (ii) the Agreement and (iii) the processes and procedures used by its personnel in performance of the Agreement. Accordingly, neither the Form, the Agreement or, such processes and procedures will be disclosed or viewed in whole or in part to third parties without the prior written permission of Water-Tite.
C. Buyer shall indemnify and hold Water-Tite harmless from and against any loss, damage or liability arising or resulting from non-compliance with the provisions of this Article 13 – Proprietary Information. 07/2023
15. OWNERSHIP OF DATA
All data generated pursuant to this Agreement shall be the sole property of Water-Tite and Water-Tite shall have all rights and title to such Data. Water-Tite may use such data for any purpose or transfer to sell such data.
16. LIMITATION OF LIABILITY
BUYER EXPRESSLY AGREES THAT NEITHER Water-Tite NOR ITS SUPPLIERS WILL UNDER ANY CIRCUMSTANCES BE LIABLE UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, FOR: ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR PUNITIVE DAMAGES WHATSOEVER; DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF EQUIPMENT, LOSS OF DATA; INCREASED COSTS OF ANY KIND. BUYER EXPRESSLY AGREES THAT THE REMEDIES PROVIDED IT HEREIN ARE EXCLUSIVE AND THAT UNDER NO CIRCUMSTANCES SHALL THE TOTAL AGGREGATE LIABILITY OF Water-Tite UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, EXCEED THE TOTAL PRICE PAID TO Water-Tite UNDER THIS AGREEMENT. THE PROVISIONS OF THIS ARTICLE SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISIONS SET FORTH ELSEWHERE IN THIS AGREEMENT.
17. EXPORT LAW COMPLIANCE
Buyer acknowledges that Water-Tite is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the Monitoring Services, or one or more of them, provided under the Contract, including any export license requirements. Buyer agrees that such Monitoring Services, or one or more of them, shall not at any time directly or indirectly be used, exported, sold, transferred, assigned in a manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by Water-Tite of its obligations hereunder that compliance with such export laws and regulations be maintained at all times.
18. MISCELLANEOUS PROVISIONS
A. Waivers: The failure of either party to enforce at any time any of the provisions of the Agreement or to require at any time performance by the other party of any of such provisions, shall in no way be construed to be a waiver of such provision, nor in any way to affect the validity of the Agreement or any parts thereof, or the right of either party thereafter to enforce each and every provision.
B. Modification: No waiver, modification, or amendment of any of the provisions of the Agreement shall be binding unless it is in writing and signed by duly authorized representatives of both parties.
C. Headings: The headings used in the Agreement are not to be construed as modifying, limiting or expanding in any way the scope or extent of the provisions in the Agreement.
D. Assignment: The Agreement will not be assigned by Buyer without the prior written consent of Water-Tite. Any purported assignment without such prior written consent shall be null and void. 07/2023
E. Governing Law: The Agreement will be construed and interpreted in accordance with the laws of the State of Delaware.
F. Integration: The Agreement and any of Seller’s applicable terms and conditions of sale contains the entire agreement and understanding between the parties as to the subject matter of the Agreement, and supersedes all prior agreements, commitments, representations, writings, and discussions between them. Neither of the parties will be bound by any prior obligations, conditions, warranties, or representations with respect to the subject matter of the Agreement.
G. Survival: The provisions entitled “Proprietary Information”, “Ownership of Data”, “Buyer Indemnity”, “Limitation of Liability”, shall survive termination, expiration or cancellation of the Agreement.
Water-Tite BILLING & CANCELLATION POLICY
The Water-Tite offer and prices are for Monitoring Services which are scheduled to be performed for (1) one month. The period of service begins upon the customer’s request for activation of the individual site. The initial (1) one month of service is provided at no charge. At the conclusion of the initial period of service, the service shall renew automatically for subsequent additional (1) one month of service, unless canceled prior to the expiration of the then current period of service.
Buyer may, upon prior notice to Water-Tite, terminate the Monitoring Services or any remaining portion thereof under the Agreement. The Monitoring Services will then terminate at the end of the Buyer’s current paid billing cycle. Water-Tite shall have the right to terminate the Agreement immediately in the event of a material breach of the Agreement by the Buyer.
To terminate the Water-Tite Monitoring Service, Buyer may send an email using the subject line “CANCEL” to [email protected]. Email must include Buyer name, address and contact information. Buyer may also terminate the Service by calling Water-Tite support at (833) 786-7779.