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END USER LICENSE AGREEMENT
By using the software (“Product Software”) that is embedded on WaterTDS Inc.'s products (“Product” or "Products"), you agree to the terms of this End User License Agreement (“EULA”) between you and WaterTDS, Inc., and its subsidiaries and affiliates, as applicable (“WaterTDS” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING US AT THE ADDRESS BELOW. Your use of the website located at watertds.com and/or apps downloaded on your mobile devices, services through the Site (and any updates to them) is governed by the Terms of Service. Your purchase of the Product is governed by the WaterTDS Limited Warranty.
This EULA governs your access and use of the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which may vary. The disclaimers, and limitations of liability under this EULA will not apply to the extent prohibited by relevant law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
Please read these terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT AND ITS SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, OR IF YOU DO NOT HAVE THE AUTHORITY, YOU WILL BE PERSONALLY LIABLE FOR ANY DAMAGES RESULTING FROM A BREACH OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE PROPERTY [THE RO WATER FILTER SYSTEM] ON WHICH THE PRODUCT AND ITS SOFTWARE IS BEING INSTALLED. YOU REPRESENT THAT YOU: (i) EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE REAL PROPERTY ON WHICH THE PRODUCT IS BEING INSTALLED; (ii) AS THE OWNER OR THE PERSON IN POSSESSION OR CONTROL (WHETHER EXCLUSIVE, OR NOT) OF THAT REAL PROPERTY, HAVE THE RIGHT TO INSTALL THE PRODUCT ON THAT REAL PROPERTY. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. WATERTDS IS WILLING TO LICENSE THE PRODUCT SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT AND ITS SOFTWARE.
Flo reserves the right to make changes to this EULA, so please check back often for updates. We'll post notice of modifications to this EULA on this page. You should ensure that you have read and agree with our most recent EULA when you use the Site Services. Continued use of the Site Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised EULA.
Subject to the terms of this EULA, WaterTDS grants to you a limited and nonexclusive license (without the right to sublicense) to execute one a copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes. Except as set forth in the following sentence, you may not sell, sublicense, rent, lease, lend or otherwise transfer the Product Software in any way. You agree that the Product Software and any additional materials specific to the Product Software provided under this EULA are and shall at all times remain the sole and exclusive property of Flo. Unauthorized copying of the Product Software is expressly forbidden.
You agree not to, and you will not permit others to: (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party; (b) copy or use the Product Software for any purpose other than as permitted in Section 1; (c) use any portion of the Product Software on any device or computer other than the Product that you own or control; (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software; or (e) modify, translate, alter, merge with another program, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software. You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of WaterTDS for each such release.
You represent and warrant that you shall not do any of the following, and shall not cause or knowingly allow others to, do any of the following: (a) use the Product Software unlawfully; (b) place harmful software on the Product Software or use it in connection with the Product Software, including but not limited to, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key-logging and other monitoring software, worms, logic bombs, or other harmful code or programs; (c) use the Software, by itself or in conjunction with harmful software, to: (1) negatively impact the operation or performance of the Product Software, (2) negatively impact the safety, security, or privacy of users or owners of the Product Software, (3) negatively impact the operation or performance of the networks with which the Product Software may interact (“Networks”), (4) attempt unauthorized use or access to such Networks, or to any service, data or account, (5) cause harm to the software, the Products with which they are used, or the Network, or impair their use by others, or (6) infringe upon the privacy rights of any authorized user or third party.
3. Automatic Software Updates
WatreTDS will from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates we provide. Your continued use of the Product is your agreement to this EULA.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of WaterTDS and its licensors. WaterTDS and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to us with respect to the Product Software shall be watertds’s property. WaterTDS may use, copy, change, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Watertds does not waive any rights to use similar or related ideas previously known to us, developed by its employees, or obtained from other sources.
5. Open Source
Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Each part of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software.
6. Term and Termination
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. WaterTDS may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to WaterTDS. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the applicable terms of will remain in effect, after any such termination.
7. Warranty Disclaimer
YOU USE ALL PRODUCT INFORMATION, THE PRODUCT AND SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR WATER SYSTEMS, PLUMBING, HOME, PROPERTY, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PERSONS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT. WaterTDS makes no warranty whatsoever with respect to the accuracy of the data.
8. Limitation of Liability
Nothing in this EULA and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL: (A) WATERTDS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF WATERTDS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) WATERTDS’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO WATERTDS FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. FLO DISCLAIMS ALL LIABILITY OF ANY KIND OF WATERTDS’S LICENSORS AND SUPPLIERS.
9. Limitations of Product Software
Unless explicitly promising a “guarantee,” WaterTDS does not guarantee or promise any specific level of filter savings, or other monetary benefit from the use of the Products or Product Software or any feature of them. Actual saving and monetary benefits vary with factors beyond our control or knowledge. From time to time, WaterTDS may use the Product Software to provide you with information that is unique to you and suggests an opportunity to change filter cartridges to save money if you adopt suggestions or features of the Product or Product Software. We do this to highlight an opportunity based on our analysis of your filter system.
The Product Software provides you information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.
10. Export Compliance
The Product and Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold WaterTDS harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section
14. Data Protection
15. Electronic Communications
You are communicating with WatertDS via email when you create your account to order products and use the Site Services. You agree that the email you provide is yours and all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Your email address is used to send you information about our products and services unless you opt-out of such emails using the opt-out link in the emails.
We may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Flo account. WaterTDS is not responsible for any automatic filtering you or your network provider may apply to email notifications. We recommend that you add the “@watertds.com” to your email address book to help ensure you receive email notifications from us.
17. Force Majeure
WaterTDS will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
18. Protection of Confidential Information and Intellectual Property Rights
You acknowledge that the Product Software and the Confidential Information contain valuable trade secrets and proprietary information of Flo, that any actual or threatened breach of Section 2 (Restrictions) or Section 10 (Confidentiality) of this EULA will constitute immediate, irreparable harm to Flo for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. Notwithstanding the provisions of the Arbitration Agreement in Section 12, watertds may seek injunctive or other equitable relief to protect its Confidential Information, trade secrets, proprietary information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
If any part of this EULA becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of this EULA will remain in full force and effect.
The obligations in Sections 2 through 23 will survive any expiration or termination of this EULA.
Failure or delay by us to enforce any provision of this EULA will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
22. Governing Law and Jurisdiction.
This EULA is governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Ventura County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in Section 12.
This EULA, and any associated rights or obligations, may not be assigned or otherwise transferred by you without our prior written consent. This EULA may be assigned by watertds without restriction. This EULA is binding upon any permitted assignee.
The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. WaterTDS will have no responsibility to provide maintenance or support services with respect to the Product Software.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Questions or Additional Information. If you have questions regarding this EULA, please contact WaterTDS Inc by email at email@example.com