Terms & Conditions

This website (the Site) is a copyrighted work belonging to WaterSmart Software, Inc. (Company, us, our, and we). Company provides a user interface that allows individuals to view and analyze their water usage data and to receive personalized water saving recommendations and rebates (collectively, with all other services provided through the Site, the Services).

These Terms of Use (this Agreement) sets forth the legally binding terms for your use of the Site and Services. By accessing or using the Site or Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, please do not access and/or use the Site or Services.

The terms of the Privacy Policy are incorporated into, and considered a part of, this Agreement.

1. ACCOUNTS

1.1 Account Creation. In order to use certain features of the Site (e.g., to use the Services), you must register for an account with Company (Company Account) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. Company may suspend or terminate your Company Account in accordance with Section 9.

1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Company Account login information and are fully responsible for all activities that occur under your Company Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Company Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. We will protect your Company Account information in accordance with the Privacy Policy.

2. SITE

2.1 License. Subject to the terms of this Agreement, Company grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal, noncommercial use.

2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site content must be retained on any copies.

2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.

2.4 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by Company or Company’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Company and its suppliers reserve all rights not granted in this Agreement.

3. USER CONTENT

3.1 Feedback. If you provide Company any feedback or suggestions regarding the Site or Services (Feedback), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.

4. ACCEPTABLE USE POLICY. THE FOLLOWING SETS FORTH COMPANY’S ACCEPTABLE USE POLICY:

4.1 You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site, through password mining or other means; or (f) harass or interfere with another user’s use and enjoyment of the Site or Services.

4.2 We reserve the right (but have no obligation) to investigate and/or take appropriate action against you in our sole discretion (including terminating your Company Account in accordance with Section 9 and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and customers, we may access and disclose any information consider necessary or appropriate, including your Company Account username and password, IP address and traffic information, and usage history.

5. INDEMNITY. YOU AGREE TO INDEMNIFY AND HOLD COMPANY (AND ITS OFFICERS, EMPLOYEES, AND AGENTS) HARMLESS, INCLUDING COSTS AND ATTORNEYS’ FEES, FROM ANY CLAIM OR DEMAND MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF (I) YOUR USE OF THE SITE OR SERVICES OR (II) YOUR VIOLATION OF THIS AGREEMENT. COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION OR PROCEEDING UPON BECOMING AWARE OF IT.

THIRD PARTY SITES & ADS; OTHER USERS

6.1 Third Party Sites & Ads.

The Site might contain links to third party websites and advertisements for third parties (collectively, Third Party Sites & Ads). Such Third Party Sites & Ads are not under the control of Company and Company is not responsible for any Third Party Sites & Ads. Company provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site or an ad provided by a third party, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.

6.2 Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future disputes, claims, controversies, demands, rights, obligations, liabilities, actions and causes of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

7. DISCLAIMERS

THE SITE AND SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON- INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

8. LIMITATION ON LIABILITY

IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY).

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

9. TERM AND TERMINATION. SUBJECT TO THIS SECTION, THIS AGREEMENT WILL REMAININ FULL FORCE AND EFFECT WHILE YOU USE THE SITE OR SERVICES. WE MAY (A) SUSPEND YOUR RIGHTS TO USE THE SITE AND/OR SERVICES (INCLUDING YOUR COMPANY ACCOUNT) OR (B) TERMINATE THIS AGREEMENT, AT ANY TIME FOR ANY REASON AT OUR SOLE DISCRETION, INCLUDING FOR ANY USE OF THE SITE OR SERVICES IN VIOLATION OF THIS AGREEMENT. UPON TERMINATION OF THIS AGREEMENT, YOUR COMPANY ACCOUNT AND RIGHT TO ACCESS AND USE THE SITE AND SERVICES WILL TERMINATE IMMEDIATELY. COMPANY WILL NOT HAVE ANY LIABILITY WHATSOEVER TO YOU FOR ANY TERMINATION OF THIS AGREEMENT, INCLUDING FOR TERMINATION OF YOUR COMPANY ACCOUNT. EVEN AFTER THIS AGREEMENT IS TERMINATED, THE FOLLOWING PROVISIONS OF THIS AGREEMENT WILL REMAIN IN EFFECT: SECTIONS 2.2, 2.3, 2.4, 3 10.

10. GENERAL

10.1 Changes to Terms of Use. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any material changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

10.2 Governing Law. This Agreement shall be 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 courts and federal courts located within Marin County, California for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.

10.3 Entire Agreement. This Agreement (which includes the Privacy Policy and any other rules posted on the Site) constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.

10.4 Copyright/Trademark Information. Copyright © 2010-2011, WaterSmart Software, Inc. All rights reserved. All trademarks, logos and service marks (Marks) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party, which may own the Marks.