Terms of service

STANDARD TERMS AND CONDITIONS OF SALE

1. AGREEMENT TO BUY AND SELL.  Pursuant to the accompanying Sales Order, Lamarr, Inc., a Delaware corporation (“Seller”) agrees to sell to Buyer and Buyer agrees to purchase from Seller the hardware listed on the accompanying Sales Order (the “Product”) upon the terms and conditions set forth in this agreement (the “Agreement”).  Buyer shall pay to Seller the “Contract Price” listed in the Sales Order. 
2. LIMITED WARRANTY.  The Product is intended to be used exclusively in connection with the meter.me software and application (the “Application”) created and owned by Lamarr, Inc., a Delaware corporation (“Lamarr”).  Seller warrants to Buyer that all meter.motes and meter.bases will be free from defects caused by defective material and faulty workmanship for long as Buyer maintains an active subscription to the Application (the “Limited Warranty”).  In the event Buyer sells the Products to a third party end-user, this Limited Warranty will be transferred from Buyer to such third party end-user of the Products. .  Seller does not provide any warranty for sensors.
3. CONDITIONS AND TERMS OF LIMITED WARRANTY; EXCLUSIVE REMEDIES FOR BREACH OF LIMITED WARRANTY. 

3.1    Seller’s sole and maximum liability for breach of its warranties herein is limited to the obligation, at Seller’s sole discretion to rescreen, reprocess or provide replacement goods, or credit Buyer's account, any goods delivered hereunder which either become defective or fail to meet the standards in the Limited Warranty during the warranty period and which are found by Seller to be defective under the terms of the Limited Warranty, provided that:  (a) Seller is notified in writing by Buyer within thirty days after discovery of defects;  (b) the defective goods are returned to Seller, transportation charges prepaid by Buyer (provided, however, that if upon examination by Seller, it determines that the goods are entitled to the Limited Warranty, then Seller shall be responsible for all transportation charges to and from Seller's); (c) the defective goods are received by Seller for adjustment no later than thirty days following the last day of the warranty period; and (d) Seller's examination of such goods discloses that such defects or failures have not been caused by misuse, abuse, neglect, improper installation or application, repair, alteration, damage or casualty or by accident or negligence in use, storage, maintenance, transportation or handling. 

3.2.  In the event that any one or more of the conditions in Section 3.1 is not satisfied, Seller shall have no liability under this warranty whatsoever. Buyer has an obligation to mitigate any damages related to the integration of defective or nonconforming Products. If Buyer has knowledge that such Products are defective or nonconforming or Seller has advised Buyer that Products are defective or non-conforming and in either event Buyer integrates such defective Products, Seller shall have no liability to Buyer for any damages incurred by Buyer as a result. Seller shall have no liability to Buyer to the extent such failure is caused by non-compatibility with other components used by Buyer. 

3.3.  In the event that the foregoing exclusive remedy under this warranty is determined upon judicial review to have failed in its essential purpose through no fault of Buyer, the alternate exclusive remedy shall be the refund of the purchase price of the nonconforming or defective goods. Any repairs to or alterations on the Products must be authorized in writing by Seller to prevent voiding Seller's warranty.

3.4.  Seller’s obligation to honor the Limited Warranty in Paragraph 2 of this Agreement is expressly contingent upon Seller’s receipt of payment in full for the Products entitled to the Limited Warranty. 

3.5.  Any action brought by Buyer which arises out of or relates to this Agreement, whether arising out of contract or tort, must be commenced within one (1) year after the Contract Date. 

4. DISCLAIMER OF EXPRESS WARRANTIES.  Aside from the Limited Warranty described in Paragraph 2 of this Agreement, it is the intent of the parties to provide in this Agreement an effective disclaimer of all express warranties with respect to the Product sold under this Agreement.  No statement of fact, promise, representation, affirmation, or other indication has been made with respect to the quality of the Product other than those which appear in this written Agreement or the Sales Order.  The description of the Product contained in this Agreement and the Sales Order is the sole basis for the Agreement, and no statements or representations other than those embodied herein have been made or relied on.  In the event that any sample or model was used, it was used for the purposes of approximate illustration only and that no reliance was placed upon it in arriving at the terms of this Agreement.  It is further agreed that any opinions or statements of Seller as to the value or quality of the Product sold under this Agreement do not form a basis for this Agreement, unless the statements or opinions are specifically embodied in this writing, they do not, in any way, constitute a warranty.  Any modification of this Agreement that relates in any way to a warranty must be in writing and signed by Seller.  It is further acknowledged, that no agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the Product sold under this Agreement, and unless an affirmation, representation, or warranty made by an agent, employee, or representative is specifically included within this Agreement, it will not be enforceable by Buyer. 

5. DISCLAIMER OF IMPLIED WARRANTIES.  THE PRODUCT SOLD UNDER THIS AGREEMENT IS PURCHASED BY BUYER “AS IS” AND “WITH ALL FAULTS.”  IT IS SPECIFICALLY AGREED THAT THE PRODUCT SOLD UNDER THIS AGREEMENT IS SOLD WITHOUT ANY WARRANTY OF MERCHANTABILITY.  IT IS FURTHER AGREED THAT SELLER MAKES NO WARRANTY THAT THE PRODUCT SOLD UNDER THIS AGREEMENT IS FIT FOR ANY PARTICULAR PURPOSE.  THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH THE BUYER.  

 

6. NO NSF CERTIFICATION.  Unless otherwise expressly noted in the Sales Order, the Product is not certified by NSF, including without limitation NSF/ANSI/CAN 61 certification, and as such Seller makes no representation or warranty that the Product meets health and safety and/or regulatory requirements for water certification and testing, including, without limitation, regulatory requirements for municipal water systems.   Buyer acknowledges that NSF-certified products are available to the public and by not purchasing such product, Buyer expressly assumes all risk and liability with respect to the Product to the extent the Product is not NSF-certified. 

7. WAIVER OF CLASS ACTION.  Buyer may not be a representative of other potential claimants or a class of potential claimants in any dispute relating to the Product or similar products sold by Seller, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. 

8. INDEMNITY.  Buyer shall defend, indemnify, release, and hold harmless Lamarr and Seller, and their respective officers, employees, agents, representatives and customers from and against any claim, demand, action, lawsuit, damage, liability, loss, penalty, settlement or judgment, including costs and attorneys’ fees  which allege or arise out of: (a) Buyer’s actions after acceptance of the Product, including, but not limited to, Buyer’s handling, storage, use, and/or maintenance of the Product, (b) claims not covered by the Limited Warranty provided in this Agreement; (c) any actual or alleged breach by Buyer of the terms or conditions of this Agreement; (d) any failure of Buyer or of Buyer’s employees or agents to properly handle, store, use or maintain the Product; (e) any liability of Seller in excess of the limitations of liability provided for under Paragraph 3 of this Agreement; and (f) any latent defects in the Product accepted by Buyer.  Buyer’s indemnity provided for herein shall be to the fullest extent permitted by law, but shall not extend to claims caused solely by Seller’s intentional acts, or by Seller’s gross negligence or willful misconduct.

9. NO RELIANCE BY BUYER.  Seller may at times make general referrals, suggestions or other general recommendations orally or in its advertising, website, or publications with respect to any of the products it sells (including the Product). Buyer is hereby advised to make its’ own buying decisions and determinations.  Buyer is hereby advised that it bears sole responsibility for making such independent investigation and for proceeding in accordance therewith.  Buyer hereby acknowledges that it is not relying on any referrals, suggestions or other recommendations made by Seller with respect to the Product sold by Seller, or with respect to storage, handling, maintenance or use of the Product sold by Seller.  Seller shall not be responsible for any statements, claims, or representations made by any third party, including the companies that manufacture or sell the Product. 

10. DISPUTE RESOLUTION; VENUE.   Any dispute, controversy or claim arising under, out of, or in relation to the Sales Order or this Agreement or any breach thereof, shall be settled by arbitration administered by the American Arbitration Association under then governing commercial arbitration rules.  An award or decision obtained through arbitration pursuant to this Section shall be final and binding on the parties, and judgment on any award or decision rendered by the arbitrator(s) may be entered and enforced in any court of competent jurisdiction.  No action at law or in equity based upon any claim arising out of or related to this agreement shall be instituted in any court by any party except (a) an action to compel arbitration pursuant to this section or (b) an action to enforce an award obtained in an arbitration proceeding.  The arbitration shall be conducted in the City and County of San Francisco, State of California, U.S.A.  By entering into this Agreement or accepting the Product, Buyer hereby consents to jurisdiction in the State of California.  

11. GOVERNING LAW.  Any dispute, claim or controversy arising under or in relation to this Agreement, including the validity, interpretation or performance of its terms, or any breach thereof, shall be interpreted, governed by and enforced in accordance with the laws of the State of California, U.S.A., without regard for conflict of law principles.

12. ATTORNEYS’ FEES.  In the event of any litigation (or arbitration) involving the parties to this Agreement in connection with the interpretation of this Agreement or the enforcement of any right or obligation under this Agreement, the prevailing party shall be entitled to payment by the other party or parties of all court costs and reasonable attorneys’ fees incurred by the prevailing party in connection with that litigation (or arbitration), in the amount the court or arbitration panel may judge reasonable, all of which may be incorporated into and be a part of any judgment or decision rendered in the litigation.

13. INTEGRATION.  This Agreement and the accompanying Sales Order shall constitute the entire agreement of the parties, and shall supersede all prior written and oral agreements and understandings with respect to its subject matter.  This Agreement cannot be altered, modified, amended, waived, extended, changed, discharged or terminated orally or by any act on the part of a party hereto, but only by an agreement in writing signed by the party against whom enforcement of any alteration, modification, amendment, waiver, extension, change, discharge or termination is sought.

14. SEVERABILITY.   If one or more of the provisions of this Agreement shall to any extent be deemed invalid or unenforceable under any applicable law, the remainder of this Agreement shall not be affected thereby and shall remain valid and enforceable to the fullest extent permitted by applicable law. 

15. WAIVER.  Any waiver of strict compliance with any of the terms of this Agreement by Seller shall not constitute a waiver of Seller’s rights under any other provision of this Agreement or a waiver of Seller’s rights to strict compliance with any of the terms and conditions of this Agreement thereafter.

16. TIME OF THE ESSENCE.  Time is of the essence of this Agreement, and every provision hereof, including, without limitation, Paragraph 3.

17. NOTICES.  All notices shall be made in writing and shall be sent to each party at its address or fax number set forth in the Sales Order, or, in the event of a change in any address or fax number, then to such other address or fax number as to which notice of the change is given.

18. FORCE MAJEURE.  Notwithstanding anything to the contrary in this Section, Seller shall not be held liable for any loss, damages or costs arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement, where such failure shall be beyond the reasonable control of Seller, including, but not limited to, acts of God, strikes, lockouts, shortages, production difficulties, industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, riots, explosions, fires, floods, earthquakes, pandemic or epidemic or associated governmental orders in response to the same, inability to secure materials on a timely basis, delays of carriers or suppliers, governmental action (including actions by customs officials), acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any governmental body, or any other cause not within the reasonable control of either party.