ACTIVATION agreement for alarm and cellular service (“Agreement”)
Last Updated: June 1, 2016
***by clicking “i Accept” during the activation process or by purchasing a product or service on pumpalarm.com, you acknowledge that you have read this agreement, that you understand its terms and conditions, and that you agree to be bound legally by it. please review the following agreement carefully. seller’s activation of your product and service is contingent upon your acceptance of this agreement. if you do not agree with this agreement, do not activate product or service. If you choose to not activate product, your sole remedy is to return Product as provided for in Seller’s Return Policy as found at www.pumpalarm.com.***
This Agreement is by and between You (“End-User”) and PumpAlarm.com, LLC, an Indiana limited liability company (“Seller”) (collectively, the “Parties”) and is effective as of the date of clicking “I Accept” during the activation process of Seller’s product and service.
Whereas, Seller offers for sale products on www.pumpalarm.com namely a sump pump alarm with text notification capability (“Product”) and cellular service, which is required in order for the alarm to send notification text messages (“Service” collectively with Product “Product and Service”).
Whereas, when activated with cellular service purchased through and activated by Seller, the Product will send notifications via the cellular network to End-User’s cellular device (“Notifications”).
Whereas, End-User has purchased Product and Service from Seller and in accordance with this Agreement desires to have such Product and Service activated.
Now therefore, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed to by both End-User and Seller, the Parties agree as follows:
2. Term. This Agreement is effective as of the date End-User clicks “I Accept” and is effective either i) for twelve (12) months from date of activation or ii) until End-User’s Product has sent 600 texts, whichever event occurs first, unless earlier terminated as provided for below.
3. Service and Text Limits. Service is good for twelve (12) months from date of activation or until End User’s Product has sent 600 texts, whichever event occurs first (“Service Expiration”). Once Service Expiration has been reached, End-user must purchase additional Service from Seller and re-activate Product and Service through www.pumpalarm.com.
4. Intended Use. Product and Service are to be used and installed per the Quick Start Guide, User’s Manual, and/or any other instructions provided by Seller (collectively, the “Seller’s Guidelines”). Any use beyond or against the Seller’s Guidelines (“Unintended use”) are at the End-User’s own risk, and Seller does not warrant or make any representations whatsoever regarding the use of Product and Service for any unintended use. Seller”s Product and Service are convenience items and are not intended to be a substitute for normal maintenance and proper upkeep of equipment or property that Product and Service are monitoring. Seller’s Product and Service are convenience items and are not intended to monitor equipment, products or other items which are vital, necessary, and/or have life-or-death consequences. The End-User should take care to determine prior to use whether Product and Service are suitable, adequate or safe for the use intended. Since individual applications are subject to great variation, Seller makes no representation or warranty as to suitability or fitness of Product and Service for any specific application.
5. Cellular Product. Product and Service are cellular in nature and as such rely on the cellular network in order to send/receive Notifications. End-User must have a cellular device in which to communicate with Product and Service and receive Notifications. Product and Service must be activated after purchasing in order for cellular service to be connected. If not activated, the Product and Service will not send/receive Notifications. The Service is not guaranteed, and Seller cannot and does not guarantee or represent that Service will be available in End-User’s area or that Service will be continuous and uninterrupted in End-User’s area. It is End-User’s responsibility to determine if cellular coverage is available in End-User’s area and to monitor the warning light on Product and Service to determine the cellular signal strength to Product and Service. End-user shall contact Seller for assistance if needed. If Service is not available in End-User’s area, then End-User’s sold remedy is to return Product and Service as provided for in Seller’s Return Policy as found at www.pumpalarm.com. As such, Seller is not liable for any causes of action, losses or damages of any kind whatsoever arising out of mistakes, omissions, interruptions, errors, or defects in the provision of cellular service and failures or defects in the cellular network. Further, End-User expressly understands and agrees that End-User has no contractual relationship whatsoever with the underlying cellular service provider or its affiliates or contractors and that End-User is not a third-party beneficiary of any agreement between Seller and the underlying carrier. In addition, End-User acknowledges and agrees that the underlying carrier and its affiliates and contractors shall have no legal, equitable or other liability of any kind to End-User and End-User hereby waives any and all claims or demands therefor.
6. Limitation of Liability. End-User and Seller agree that Seller is not an insurer and no insurance coverage is offered by Seller. Payments to Seller are solely for Product and Service and Seller makes no representation that Product and Service will reduce any risk of property loss or personal injury or prolong the life of any equipment or other property; or that Product and Service will in all cases provide adequate warning and protection. End-User understands that Product and Service if properly installed and maintained may only reduce the risk of property loss or other loss but Product and Service are not an insurance or a guarantee that there will be no property loss or other loss as a result. CONSEQUENTLY, SELLER SHALL HAVE NO LIABILITY FOR ANY PROPERTY DAMAGE, PERSONAL INJURY OR OTHER LOSS BASED ON A CLAIM THE PRODUCT AND SERVICE FAILED TO GIVE WARNING. Moreover, End-User expressly absolves and releases Seller from any claim of harm resulting from a cause beyond Seller’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone, cellular network, or other connection problems, computer viruses, unauthorized access to End-User’s account, theft, operator errors, failure to use or install Product or Service per Seller’s Guidelines, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars or governmental restrictions. MOREOVER, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT AND SERVICE, WITH THE DELAY OR INABILITY TO USE THE PRODUCT AND SERVICE, OR FOR ANY INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIAL AVAILABLE THROUGH WWW.PUMPALARM.COM, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF SELLER FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT OR TO USE OF THE PRODUCT AND SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY END-USER TO SELLER FOR PRODUCT AND SERVICE.
7. Indemnity. End-User agrees to defend, indemnify, and hold harmless Seller and its parent, affiliates, subsidiaries, employees, agents, directors, officers, managers, members, shareholders, successors and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and court costs) relating to or arising from any breach by End-User of this Agreement.
8. Limited Warranty. Seller warrants to End-User that Product will be free from defects in materials and workmanship under normal use and service for two (2) years from the purchase date. A claim under this warranty must be presented during the warranty period and within thirty (30) days after any covered condition has occurred. To make a claim under this warranty, Seller must first issue the End-User a Returned Material Authorization (“RMA”) number. This number can be obtained by calling Seller and a copy will be provided by email. A copy of the RMA must be included with any materials shipped to Seller. The entire Product assembly must be sent back to Seller (unless specifically listed otherwise on the RMA form) and properly packaged to ensure against damage during shipping. If Seller determines that the claim is covered by this warranty, Seller will either, in its sole discretion, repair or replace the Product and/or part. Replacement Products may be new or reconditioned. Any damages not covered under this warranty will not be repaired until a written purchase order is received. The warranty period shall not be extended by the replacement or repair of Product or parts under this warranty but the remaining warranty period shall continue in effect and be applicable to the replaced or repaired Product or parts under conditions of the warranty. Payment for Service covers only cellular transmission fees and in no way extends any portion of this warranty. This fee does not include out of warranty service or repair. Upon expiration of the warranty period, all liability of Seller shall be terminated. This limited warranty does not apply in the following cases: failure to follow Seller’s Guidelines, misuse, alteration, abuse, accident or tampering, and repair by anyone other than Seller. This Limited Warranty is exclusive and expressly in lieu of all other warranties, obligations or liabilities, whether written, oral, express or implied, including any warranty of merchantability or fitness for a particular purpose, or otherwise. In no case shall seller be liable to anyone for any consequential or incidental damages for breach of this warranty or any other warranties whatsoever. This warranty gives specific legal rights. End-User may have other rights, which vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages, so that the above limitation of exclusion may not apply to you. The individual End-User should take care to determine prior to use whether this Product is suitable, adequate or safe for the use intended. Since individual applications are subject to great variation, Seller makes no representation or warranty as to suitability or fitness of these Products for any specific application.
9. Right to Refuse. Seller reserves the right to refuse any order End-User may place with Seller, regardless of reason. Seller also reserves the right to limit or prohibit sales to dealers, resellers or distributors.
10. Term and Termination. Seller may terminate this Agreement without prior notice and without liability whatsoever to End-User in the event of the following: a) cellular coverage is unavailable, becomes unavailable, or Seller’s agreement with cellular carrier is terminated; b) Seller’s facility is destroyed or damaged so that it is impractical to abide by this Agreement; c) End-User’s account is past-due or End-User does not make payment; or d) End-User breaches this Agreement including but not limited to misuse of Product and Service.
11. Consent to Text. By clicking “I Accept” during the activation/checkout process, End-User is expressly acknowledging that the Product and Service End-User purchased and activated are texting devices and will send text messages to the mobile device(s) that End-User entered when setting up and programming Product and Service. Further, End-User expressly consents to receiving such text messages in conjunction with the use of the Product and Service. Further still, End-User expressly consents to Seller’s use of the mobile device number(s) End-User provided in connection with the use of the Product and Service, in order to contact End-User regarding the Product and Service, such as, but not limited to, contacting End-User regarding renewal of Service. End-User understands that Seller may send mobile text messages or voice calls using automated technology. Message and data rates may apply. To cancel End-User must contact Seller directly at 1-888-454-5051.
13. Product Concerns or Questions. IN THE EVENT OF AN ISSUE OR PROBLEM WITH PRODUCT AND SERVICE, End-User MUST contact Seller directly at 1-888-454-5051. DO NOT contact the underlying cellular carrier about the Product and Service.
14. Severability.If any provision of this Agreement is held invalid or unenforceable in whole or in part in any jurisdiction that provision shall be ineffective in that jurisdiction without affecting the validity or enforceability of the remaining provisions of this Agreement.
15. Headings of the Agreement.The section headings used in this Agreement are only for reference and the convenience of the readers and shall not constitute part of this Agreement for interpretation purposes.
16. Entire Agreement.This Agreement and the documents incorporated by reference in Paragraph 1 constitute the entire and only agreement between End-User and Seller and supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the subject matter hereof.
17. No Waiver.The failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
18. Modification. This Agreement may be modified by Seller without prior notice. Seller will use reasonable efforts to provide End-User with changes to this Agreement via the method specified in Paragraph 19.
19. Notices. Any notices to Seller pursuant to this Agreement or otherwise can be sent to Seller via the contact information for Seller posted at www.pumpalarm.com. Any notices to End-User pursuant to this Agreement or otherwise shall be sent to End-User via End-User’s email address as provided by End-User. End-User must update Seller if email address changes.
20. Governing Law and Venue. This Agreement shall be governed by and construed according to the laws of the State of Indiana, without regard to conflict of laws. In the event of a dispute relating to this Agreement that the Parties are unable to resolve through negotiations, the Parties hereby agree to the exclusive jurisdiction of the state and federal courts of the State of Indiana. Each party irrevocably consents to the jurisdiction of those courts and to service of process.
21. Survival. Any provision of this Agreement that would be expected to survive expiration or termination of this Agreement shall in fact survive such expiration or termination, including but not limited to, limitations of liability, indemnification, disclaimers, governing law and venue.
22. Acceptance. By clicking “I Accept” during the activation process or by purchasing Product and Service on www.pumpalarm.com, End-User acknowledges that End-User has read this agreement, that End-User understands its terms and conditions, and that End-User agrees to be bound legally by it. Seller’s activation of End-User’s Product and Service is contingent upon End-User’s acceptance of this Agreement. If End-user does not agree with this Agreement, do not activate Product and Service. If End-User chooses to not activate Product, End-User’s sole remedy is to return Product as provided for in Seller’s Return Policy as found at www.pumpalarm.com.