120Water Terms of Sale
Last Modified: July 20, 2020
1. BY PLACING AN ORDER FOR GOODS FROM THE SITE (DEFINED BELOW), YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN GOODS FROM THE SITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH 120 WATER AUDIT, INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE SITE OR ANY OF THIS SITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These Terms of Sale (these “Terms“) apply to the sale of goods by 120 Water Audit, Inc. d/b/a 120Water (referred to as “us“, “we“, or “our” as the context may require) through https://120water.com/ (or any successor thereto) (the “Site“) and the purchase of (i) goods and related services by an individual consumer (an “At-Home Customer”) and (ii) goods by customers pursuant to a master services agreement (“SaaS Customer”). These Terms are subject to change by us without prior written notice at any time, in our sole discretion; provided, that, changes to periodic purchase plans will be made in accordance with Section 3. The latest version of these Terms will be posted on this Site, and you should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all goods listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between us and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by calling our Customer Service Department at 1-888-317-1510.
3. Periodic Purchase Plans. You may purchase certain goods individually or as part of a reoccurring periodic purchase plan pursuant to the terms described in your offer and your order confirmation e-mail.
(a) Periodic Purchase Plans for At-Home Customers. This Section 3(a) applies to At-Home Customers that purchase goods pursuant to a periodic purchase plan. Unless otherwise described in your offer and your order confirmation e-mail, you agree (i) to purchase three (3) of the same goods and testing service levels in a one (1) year period, and (ii) to pay the amounts owing in three equal installments with each installment being due every one hundred twenty (120) days. All installment payments shall be automatically charged to the credit card that you provide to us. All payments hereunder shall be in US dollars. Each periodic purchase plan will automatically renew for additional successive one (1) year periods unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current period. If either party provides timely notice of its intent not to renew the applicable periodic purchase plan, then the applicable periodic purchase plan shall terminate on the expiration of the then-current period. We reserve the right to change our periodic purchase plans or adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Changes we make to your periodic purchase plan will take effect following notice to you; provided, that, changes we make to pricing terms will take effect immediately following the end of the then-current period.
(b) Periodic Purchase Plans for SaaS Customers. This Section 3(b) applies to SaaS Customers that purchase goods pursuant to a periodic purchase plan. You agree to purchase that certain number of goods on a periodic basis as described in each Order (as defined in the MSA). All installment payments shall be automatically charged in accordance with the terms of the MSA using the payment information provided by you to us. All payments hereunder shall be in US dollars. Each periodic purchase plan will automatically renew in accordance with the MSA. We reserve the right to change our periodic purchase plans or adjust pricing for our goods in any manner and at any time as we may determine in our sole and absolute discretion. Changes we make to your periodic purchase plan with respect to goods will take effect following notice to you; provided, that, changes we make to pricing terms will take effect immediately following the end of the then-current period.
4. Prices; Payment Terms.
(a) All prices posted on the Site are subject to change without notice. Unless otherwise agreed to by us in writing, the price charged for goods will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your order total and will be itemized in your shopping cart and in your order confirmation e-mail. On rare occasions an error in our state sales tax database may cause the sales tax charge to be incorrect. If this happens, at any time up to thirty days from your date of purchase you may contact us for a refund of tax overcharges. This right to a refund is your exclusive remedy for sales tax errors. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed to by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, Mastercard, Discover and American Express for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. By submitting such credit card information, you grant to us the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction.
5. Shipments; Delivery; Title and Risk of Loss; Return Policy. We will arrange for shipment of the goods to you or your designated recipient. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges, if any, specified during the ordering process. Title and risk of loss pass to you upon our transfer of the goods to the carrier/delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
GOODS ARE NOT ELIGIBLE FOR RETURNS. If you or your designated recipient receives a damaged good, we will replace the damaged component or the entire good, in our sole discretion, within a reasonable period of time after receiving written notice from you pursuant to Section 19 of such damaged good.
6. Testing Kit Services. If the good you purchased is or includes a water quality test kit, we will send you or your designated recipient instructions and a prepaid postage with such kit. You acknowledge that you or your designated recipient must strictly follow the instructions to obtain a water sample and then mail the sample to the designated address using the prepaid postage that we provide. We are not responsible or liable for your or your designated recipient’s: (i) failure to obtain and return water samples or (ii) mistakes, errors, or omissions in collecting and mailing the water samples as instructed; and, notwithstanding anything herein to the contrary, no refunds will be provided in such instances. If you are an At-Home Customer, the test results of each completed test will be mailed or emailed to you by us or a third party testing service provider within a reasonable period of time after the test is completed. If you are a SaaS Customer, the test results of each completed test will be uploaded to your account, or mailed or emailed to you by us or a third party testing service provider, within a reasonable period of time after the test is completed. The testing services provided in connection with the products are conducted by third party laboratories. We are only responsible for arranging the testing services and ensuring you receive test results. While we endeavor to maintain relationships with dependable, accurate and timely third party service providers, WE DO NOT CONTROL SUCH SERVICE PROVIDERS, AND THEREFORE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND LIABILITY FOR ANY INACCURATE, UNTIMELY, OR OTHERWISE ERRONEOUS DELIVERABLES INCLUDING DATA, ALERTS, OR INFORMATION ATTRIBUTABLE TO SUCH SERVICE PROVIDERS.
7. Reliance on Information. Any information provided to you by or through us, is made available solely for general information purposes. Information provided to you may include content provided by third parties, including materials provided by laboratories, testing companies, third-party licensors, other users, bloggers, syndicators, aggregators and/or reporting services. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of us. WE ARE NOT RESPONSIBLE, OR LIABLE TO YOU OR ANY THIRD PARTY, FOR THE CONTENT OR ACCURACY OF ANY MATERIALS PROVIDED BY ANY THIRD PARTIES.
YOU, ON BEHALF OF YOU AND YOUR DESIGNATED RECIPIENTS, HEREBY RELEASE AND DISCHARGE US, OUR OFFICERS, REPRESENTATIVES, DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS, AGENTS AND EMPLOYEES, RELATED ENTITIES, SUCCESSORS AND ASSIGNS AND EACH OF THEM (HEREINAFTER FOR PURPOSES OF THIS SECTION, INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “120WATER“), FROM ANY AND ALL ACTUAL OR ALLEGED DEMANDS, LOSSES, CLAIMS, DAMAGES, SUITS, STRICT LIABILITY ACTIONS, CLASS ACTIONS, NEGLIGENCE ACTIONS, IMPLIED WARRANTY ACTIONS, EXPRESS WARRANTY ACTIONS, EXPENSES, ATTORNEY FEES, AND LIABILITY RELATING TO ANY INJURY, DEATH, OR DAMAGES TO ANY PERSON OR PROPERTY (WHETHER TANGIBLE OR INTANGIBLE), OR PROPERTY SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED WHICH ARISES OUT OF OR IS RELATED IN ANY MANNER TO THE POSSESSION OR USE OF THE GOODS AND SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY CLAIM THAT THE ACT OR OMISSION COMPLAINED OF WAS CAUSED SOLELY OR IN PART BY THE NEGLIGENCE IN ANY FORM OF 120WATER.
8. Warranty and Disclaimers. We do not manufacture any of the goods or control any of the testing services offered on or through our Site. The availability of products or services through our Site does not indicate an affiliation with or endorsement of any product, service or manufacturer. Accordingly, and except as otherwise set forth in an MSA (if applicable), we do not provide any warranties with respect to the products or services offered on our Site. However, the products and services offered on our Site may be covered by the manufacturer’s or testing service provider’s warranty as may be included with the product or service. To obtain warranty service for defective products or services, please follow the instructions included in the manufacturer’s or testing service provider’s warranty, if any.
SUBJECT TO AN MSA (IF APPLICABLE), ALL GOODS AND SERVICES OFFERED ON OR THROUGH THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S OR TESTING SERVICE PROVIDER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU, IF ANY.
9. Limitation of Liability. SUBJECT TO AN MSA (IF APPLICABLE), OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR ANY PRODUCT OR SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT, WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
10. Goods Not for Resale or Export. If you are an At-Home Customer, you represent and warrant that you are buying goods or services from the Site for your own personal or household use only, and not for resale or export. If you are a SaaS Customer, you represent and warrant that you are buying goods or services from the Site for use by designated recipients only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the U.S.
12. Force Majeure. In no event will we be liable or responsible to you, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term herein, when and to the extent such failure or delay is caused by any circumstances beyond our control, including acts of God, flood, fire, earthquake or explosion, pandemics, endemics, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation.
13. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Indiana.
15. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 15 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
16. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of ours.
17. No Third Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by email transmission to [email protected] We may update the email address for notices to us by posting a notice on the Site. Notices provided by email will be effective one business day after they are sent.
19. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.