TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (this “Agreement”) is an agreement between You and Lamarr, Inc., a Delaware corporation and governs your Use of the Application (as defined below) and any Equipment (as defined below) purchased by You from meter.me or an authorized meter.me distributor.
“meter.me” is an application owned and created by Lamarr, Inc. (the “Application”) that allows You (the individual or legal entity which has subscribed to the Application) to, amongst other things, remotely monitor water flow, well level, and tank level and to remotely control valves and pumps associated with Your water system through the Application (collectively, the “Services”).
The Application is designed to be used exclusively in connection with certain water automation, monitoring and metering systems, including gateways (meter.base), communicators (meter.mote), and sensors (meter.sense) (collectively, the “Equipment”) which You have purchased from meter.me or an authorized meter.me distributor.
1. TERMS OF SERVICE RELATING TO THE APPLICATION.
1.1 Acceptance of Terms.
This Agreement and any supplemental terms and any specific product terms available at www.meter.me govern Your Use of the Application. By Using the Application, You agree to be bound by the terms of this Agreement and any specific product terms available at www.meter.me. If you do not agree with the terms and conditions of this Agreement, You may not use or download the Application.
1.2 Permitted Uses.
Your use of the Services is limited exclusively to the address you provided in your Order (the “Premises”). The Equipment is intended to be used exclusively in connection with the Application and for no other purpose.
To use and access the Application, You must purchase a subscription with meter.me. Your use of the Application is conditioned upon Your payment of the subscription and meter.me may discontinue or terminate Your use of the Application and/or this Agreement without notice in the event You fail to timely pay the subscription fee in full.
The Services offered are novel, under development, and subject to change. As such, the Services can and will experience unplanned downtimes as our testing improves and progresses, and water system data may be inaccurate. Accordingly, you are advised that the Application should not be the primary source of your water metering solution. meter.me is not responsible for undetected leaks or water damage.
1.5 Service Limitations.
You understand and agree that meter.me does not and cannot guarantee that the Application will be continuous or error-free and you expressly assume all such risks. The Application can be interrupted for any reason that disrupts internet access, including, without limitation: (a) Electrical power outages; (b) Natural disasters; (c) Electronic interference; (d) An outage affecting the data transport service; (e) Failure of originating or terminating access lines; (f) Compatibility issues; and (g) Equipment failures relating to Your devices (e.g., Your mobile phone) or meter.me equipment, including, hardware or software failures or misconfiguration affecting meter.me or its’ offices, and/or any of its data centers. The Application operates over the public internet, and as such, meter.me cannot guarantee the connectivity and performance of the Application. The Application currently runs on iOS and Android devices. By Using the Application, you expressly assume all such risk and recognize that the Application is being provided on an “AS-IS” basis.
1.6 Ownership of Intellectual Property.
The Application, including, without limitation, its object code and source code, whether or not provided to You, is strictly confidential to meter.me. meter.me owns exclusively and reserves all rights, and You may not exercise any right, title, and interest in and to the Application, including, without limitation, all Intellectual Property Rights in and to the Application, except to the extent of the limited rights granted to You in this Agreement. No other rights with respect to the Application or any related Intellectual Property Rights are granted or implied.
1.7 Disclaimer of Warranties.
METER.ME MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE APPLICATION FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, METER.ME DOES NOT WARRANT THAT THE APPLICATION WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR LOSS OF CONTENT. STATEMENTS AND DESCRIPTIONS CONCERNING THE APPLICATION, IF ANY, BY METER.ME OR ITS’ AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. METER.ME PROVIDES THE APPLICATION “AS IS” AND EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES, CONDITIONS OR OTHER TERMS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT. METER.ME DOES NOT WARRANT THAT THE APPLICATION WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. IN ADDITION, METER.ME DOES NOT WARRANT THAT THE APPLICATION OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE APPLICATION IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
1.8 Assumption of Risk.
YOU RECOGNIZE AND AGREE THAT THE FAILURE OF THE APPLICATION TO FUNCTION AS INTENDED OR AS EXPECTED MAY CAUSE SIGNIFICANT DAMAGE, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, CROP AND LANDSCAPE FAILURE, SUBSTANTIAL WATER LOSS, LOST PROFITS, LIABILITY TO THIRD PARTIES, FLOODING, OVERFLOWS, AND LEAKS. BY DOWNLOADING AND/OR USING THE APPLICATION, YOU EXPRESSLY ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY BODILY INJURY, PROPERTY DAMAGE, THIRD-PARTY CLAIMS, LOSS OF USE, LOSS OF INCOME AND LOST PROFITS.
1.9 Exclusive Remedy.
Your sole right and remedy for breach of this Agreement is to terminate this Agreement, discontinue use of the Application and return any equipment owned by meter.me.
1.10 Limitation of Liability.
METER.ME’S LIABILITY TO YOU SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY METER.ME’S FRAUD OR INTENTIONAL MISCONDUCT. EXCEPT FOR DAMAGES THAT ARE THE DIRECT RESULT OF METER.ME’S FRAUD OR INTENTIONAL MISCONDUCT, YOU WILL NOT BE ENTITLED TO ANY DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION. IN NO EVENT SHALL METER.ME, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES. THE DISCLAIMER AND LIMITATIONS SET FORTH IN THIS PARAGRAPH APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT METER.ME KNEW OR COULD HAVE KNOWN OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL METER.ME’S AGGREGATE LIABILITY FOR (I) ANY FAILURE OR MISTAKE; (II) ANY CLAIM WITH RESPECT TO METER.ME’S PERFORMANCE OR NONPERFORMANCE HEREUNDER OR (III) ANY ACT OR OMISSION IN CONNECTION WITH THE SUBJECT MATTER HEREOF. EXCEED THE FEES PAID BY YOU TO METER.ME OVER THE PREVIOUS TWELVE (12) MONTHS.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD METER.ME, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS HARMLESS FROM ANY AND ALL FIRST AND THIRD PARTY CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE APPLICATION, RELATING TO OR ARISING OUT OF THE APPLICATION OR THE USE OF THE APPLICATION. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT METER.ME IS NOT RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE APPLICATION. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS.
2. OWNERSHIP OF THE EQUIPMENT.
2.1 Customer-Owned Equipment.
You are the owner of any meter.mote and meter.sense which are purchased from meter.me or its authorized providers and distributors.
2.3 meter.me Owned Equipment.
2.3.1 Ownership of meter.bases.
meter.me is the owner of all meter.base devices. You expressly agree that you will use the meter.base exclusively in connection with the Services. You agree that all meter.base belong to meter.me and will not be deemed fixtures or in any way part of the Premises. meter.me may remove or change the meter.base at our discretion at any time the Services are active or following the termination of your Services. You acknowledge that any addition to, removal of, or change to the meter.base may interrupt your Services. You may not sell, lease, abandon, or give away the meter.base, or permit any other service provider to use the meter.base, including meter.base for which an Unreturned Equipment Fee has been paid. The meter.base may only be used on the Premises unless expressly permitted by meter.me. At your request, we may relocate the meter.base for an additional charge. You understand and acknowledge that if you attempt to install or use the meter.base at a location other than the Premises or otherwise expressly authorized by us, the Services may fail to function or may function improperly. You agree that you will not allow anyone other than meter.me or our agents to service the meter.base. You are responsible for loss, repair, replacement, and other costs, damages, fees, and charges if you do not return the meter.base to us in an undamaged condition.
2.3.2 Unreturned Equipment Fee.
meter.base remain meter.me-owned equipment, and meter.me retains title to all meter.base, at all times, including but not limited to after payment of an Unreturned Equipment Fee. “Unreturned Equipment Fee” refers to a fee charged by meter.me to a subscriber for any unreturned or damaged meter.base upon termination of the Services provided under this Agreement. The payment of an Unreturned Equipment Fee shall not result in a sale of, or the transfer of title to, any meter.base, and such meter.base shall remain the property of meter.me, and meter.me retains title to meter.base at all times. meter.me in no way relinquishes ownership of (including title to) meter.base by the payment of an Unreturned Equipment Fee. Even if an Unreturned Equipment Fee has been paid, meter.base shall not be resold, used, or operated in any manner. If you pay an Unreturned Equipment Fee and subsequently return the meter.base undamaged (with the exception of normal wear and tear), you will be refunded your Unreturned Equipment Fee in full.
3. TERMS AND CONDITIONS RELATING TO THE EQUIPMENT.
3.1 Limited Warranty.
meter.me warrants that all meter.mote and meter.base will be free from defects caused by defective material and faulty workmanship for as long as You maintain an active subscription to the Application (the “Limited Warranty”). For the avoidance of doubt, the Limited Warranty in this Agreement and any and all obligations of meter.me under this Agreement will terminate and be of no further force or effect in the event You terminate or discontinue use of the Application. meter.me does not provide any warranty for meter.sensors. This Limited Warranty does not affect meter.me’s ownership of the meter.bases as provided in Section 2.2.
3.2 Conditions and Terms of Limited Warranty; Exclusive Remedies for Breach of Limited Warranty.
3.2.1 meter.me’s sole and maximum liability for breach of its warranties herein is limited to the obligation, at meter.me’s sole discretion to rescreen, reprocess or provide replacement goods, or credit Your 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 meter.me to be defective under the terms of the Limited Warranty, provided that: (a) meter.me is notified in writing by You within thirty days after discovery of defects; (b) the defective goods are returned to meter.me, transportation charges prepaid by You (provided, however, that if upon examination by meter.me, it determines that the goods are entitled to the Limited Warranty, then meter.me shall be responsible for all transportation charges to and from meter.me); (c) the defective goods are received by meter.me for adjustment no later than thirty days following the last day of the warranty period; and (d) meter.me’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.
3.2.2 In the event that any one or more of the conditions in Section 3.2.1 is not satisfied, meter.me shall have no liability under this warranty whatsoever. You have an obligation to mitigate any damages related to integration of defective or nonconforming Equipment. If You have knowledge that such Equipment is defective or nonconforming or meter.me has advised You that Equipment are defective or nonconforming and in either event You integrates such defective Equipment, meter.me shall have no liability to You for any damages incurred by You as a result. meter.me shall have no liability to You to the extent such failure is caused by non-compatibility with other components used by You.
3.2.3 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 You, 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 Equipment must be authorized in writing by meter.me to prevent voiding meter.me’s warranty.
3.2.4 meter.me’s obligation to honor the Limited Warranty in Section 3.1 of this Agreement is expressly contingent upon payment in full for the Equipment entitled to the Limited Warranty and payment for the subscription to the Application.
3.2.5 Any action brought by You 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.
3.3 Disclaimer of Express Warranties.
Aside from the Limited Warranty described in Section 3.1 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 Equipment sold under this Agreement. No statement of fact, promise, representation, affirmation, or other indication has been made with respect to the quality of the Equipment other than those which appear in this written Agreement. The description of the Equipment contained in this Agreement 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 meter.me as to the value or quality of the Equipment 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 meter.me. It is further acknowledged, that no agent, employee, or representative of meter.me has any authority to bind meter.me to any affirmation, representation, or warranty concerning the Equipment 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 You.
3.4 Disclaimer of Implied Warranties.
THE EQUIPMENT SOLD UNDER THIS AGREEMENT IS PURCHASED “AS IS” AND “WITH ALL FAULTS.” IT IS SPECIFICALLY AGREED THAT THE EQUIPMENT SOLD UNDER THIS AGREEMENT IS SOLD WITHOUT ANY WARRANTY OF MERCHANTABILITY. IT IS FURTHER AGREED THAT METER.ME MAKES NO WARRANTY THAT THE EQUIPMENT SOLD UNDER THIS AGREEMENT IS FIT FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EQUIPMENT IS WITH THE YOU.
3.5 No NSF Certification.
The Equipment is not certified by NSF, including without limitation NSF/ANSI/CAN 61 certification, and as such meter.me makes no representation or warranty that the Equipment meets health and safety and/or regulatory requirements for water certification and testing, including, without limitation, regulatory requirements for municipal water systems. You acknowledge that NSF-certified products are available to the public and by not purchasing such products, You expressly assume all risk and liability with respect to the Equipment to the extent the Equipment is not NSF-certified.
You shall defend, indemnify, release, and hold harmless meter.me, and its 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) Your actions after acceptance of the Equipment, including, but not limited to, Your handling, storage, use, and/or maintenance of the Equipment, (b) claims not covered by the Limited Warranty provided in this Agreement; (c) any actual or alleged breach by You of the terms or conditions of this Agreement; (d) any failure of You or of Your employees or agents to properly handle, store, use or maintain the Equipment; (e) any liability of meter.me in excess of the limitations of liability provided for under Section 3.2 of this Agreement; and (f) any latent defects in the Equipment accepted by You. Your indemnity provided for herein shall be to the fullest extent permitted by law, but shall not extend to claims caused solely by meter.me’s intentional acts, or by meter.me’s gross negligence or willful misconduct.
3.7 No Reliance.
meter.me 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 Equipment it sells (including the Equipment). You are hereby advised to make its’ own buying decisions and determinations. You are hereby advised that You bear sole responsibility for making such independent investigation and for proceeding in accordance therewith. You hereby acknowledge that You are not relying on any referrals, suggestions or other recommendations made by meter.me with respect to the Equipment, or with respect to storage, handling, maintenance or use of the Equipment. meter.me shall not be responsible for any statements, claims, or representations made by any third party, including the companies that manufacture or sell the Equipment.
4. GENERAL TERMS AND CONDITIONS.
4.1 Waiver of Class Action.
You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding.
4.2 Arbitration of Disputes.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OUT OF, OR IN RELATION TO 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 SOLANO COUNTY, STATE OF CALIFORNIA, U.S.A. BY ENTERING INTO THIS AGREEMENT OR ACCEPTING THE PRODUCT, YOU HEREBY CONSENT TO JURISDICTION IN THE STATE OF CALIFORNIA.
4.3 Governing Law, Attorney’s Fees; Limitations Periods.
This Agreement will be governed by the laws of the State of California without regard to conflict of law rules. In the event that any dispute between or among the parties to this Agreement should result in litigation or arbitration, the prevailing party in the dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation reasonable attorneys’ fees, expert fees and expenses. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than one year after the action accrues, regardless of when or whether the existence of the action is discovered or could have been discovered.
4.4 Term and Termination.
4.5 Assignment; No Third-Party Beneficiaries.
The rights granted herein are personal to You and may not be transferred, assigned or sublicensed by You in whole or in part to any other person without the prior written consent of meter.me, which consent may be withheld in meter.me’s sole and absolute discretion. This Agreement may be assigned by meter.me to any person or entity whatsoever. Nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any persons or entities other than the contracting parties and their respective successors and assigns.
This Agreement will be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the Agreement constitutes the entire agreement between the parties with respect to the Services. meter.me reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, we will provide at least thirty days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in meter.me’s sole discretion.
This Agreement shall constitute the entire agreement between You and meter.me and shall supersede all prior written and oral agreements and understandings with respect to its subject matter. meter.me is free to revise this Agreement at any time by updating the Terms of Service on its website. meter.me will make reasonable efforts to notify You of any material changes to this Agreement by placing a notice on the meter.me website or by sending you an email or text message. By continuing the use of the Application after such changes, You are expressing your acknowledgment and acceptance of any changes.
4.8. Force Majeure.
Notwithstanding anything to the contrary in this Agreement, meter.me 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 meter.me, including, but not limited to, disruption of telephone lines, internet network or equipment, or other communications equipment, software, 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
4.9 Consent to Electronic Signatures and Documents.
By accessing or using the Application, you agree to be bound by this Agreement. If you access or use the Application, be certain to take your time and read the Agreement thoroughly and only access or use the Application with your full knowledge and intent to agree to the Agreement. If you disagree with any part of the Agreement, then you do not have our permission to access or use the Application.
Mail: 4160 Suisun Valley Road, Suite E-101, Fairfield, CA 94534
Effective Date. The effective date of this Notice is December 1, 2022.