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ONPOINT ECOSYSTEMS TERMS OF SERVICE


OnPoint EcoSystems Inc. (OnPoint) sells Irrigation Controller products (Product) and associated product software (Product Software), and also provides services through our Web Site. These Terms of Service (Terms) govern your access to and use of these services (Services). The Product and Product Software are not governed by these terms, but by the limited warranty (Limited Warranty), the terms of which are available at OnPoint Product Limited Warranty, and the OnPoint End User Licensing Agreement (EULA) the terms of which are available at EULA, respectively. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules, and the OnPoint Privacy Policy (Privacy Policy), are incorporated by reference into these Terms. If you have any questions or concerns regarding our Product or Services, or these Terms, please contact OnPoint customer support at www.onpointeco.com .


ELIGIBILITY

By accessing or using our Services you are accepting and agreeing to these terms and acknowledging you can form a binding contract with OnPoint, and will comply with these Terms and all U.S. or other applicable laws and regulations. When you create your OnPoint account, you must provide us with accurate and complete information. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, you represent that you have the right, authority, and capacity to accept and agree to these terms on behalf of that entity. For our Services that contain software, you agree that we may automatically and without your consent upgrade those Services, and these Terms will apply to such upgrades. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, PLEASE DO NOT ACCESS OR USE THE SERVICES.

Subject to these Terms and our policies (including our Privacy Policy), as well as additional guidelines, terms, or rules referred to in this document and incorporated by reference into these Terms, OnPoint grants you a non-transferable, non-exclusive, right (without the right to sublicense) to use our Services solely for the purpose of controlling and monitoring the Product installed on your property (the Permitted Purpose).


TERM OF THE AGREEMENT

Unless otherwise terminated as provided herein, these Terms will remain in full force and effect as long as you continue to use or access the Services. OnPoint may, at any time, (i) suspend your rights to use the Services or (ii) terminate these Terms if OnPoint in good faith believes you have used the Services in violation of these Terms. In addition, OnPoint reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof without notice. You agree that OnPoint will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof. If you transfer your Product to a new owner, your right to use the Services automatically terminates, and the new owner will have no right to use the Services under your Account (as described below) and will need to register for a separate Account with OnPoint. The limited warranty for such Product will transfer to the new owner subject to the terms of warranty. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.


TERMINATION

OnPoint may terminate or suspend this license at any time, with or without cause or notice to you. Upon termination, you continue to be bound by Sections 2 and 6-12 of these Terms.


RESTRICTIONS

The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by OnPoint; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.


CONFIDENTIALITY, SECURITY, AND PRIVACY

You are responsible for the confidentiality of your Account login information and for any and all activities that occur under your Account. You may not use someone else's account without their permission. OnPoint encourages you to use passwords that use a combination of upper and lower case letters, numbers and symbols for your Account. If you discover or suspect unauthorized use of your account or any other security breach, you agree to immediately notify OnPoint. OnPoint is not liable for any loss or damage arising from your failure to comply with the above requirements. In addition, we care about your security, and while we work to protect the security of your Account, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. Our Privacy Policy describes practices regarding information OnPoint may collect from users of the Services.


INTELLECTUAL PROPERTY AND OWNERSHIP

You acknowledge that OnPoint owns and shall continue to own all title, rights, and other interests, including all intellectual property rights, copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services. The provision of the Product, Product Software, and Services does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. OnPoint reserves all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.

You agree that under no circumstances will you attempt to deconstruct, reverse engineer, replicate, duplicate or decompile the Product, Product Software, or Services, or any elements thereof. You agree that any comments, suggestions, or ideas about the Services, including how to improve the Product, Product Software, or Services (Ideas), whether submitted by you or invited by OnPoint, are voluntary, gratuitous, unsolicited, and without restriction and will not place OnPoint under any fiduciary or other obligation, and that OnPoint is free to use such Ideas without any additional compensation to you and to disclose such Ideas. You also agree that OnPoint does not waive any rights to use similar or related ideas previously known to OnPoint, developed by its employees, or obtained from other sources.


INDEMNITY

You agree to indemnify and hold OnPoint and its licensors and suppliers harmless from any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties) made by any third party due to or arising out of your violation of these Terms. OnPoint reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify OnPoint and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without OnPoint’s prior written consent. OnPoint will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.


THIRD PARTIES

Third parties include vendors of your network equipment, ISPs, Carriers, App stores, and third party sites that may be linked from our site. These and other third parties are not under our control and OnPoint is not responsible for their performance, content, services, fees, warranties, terms or any representations made by these third parties. In addition, you agree that the availability of our Services is dependent upon some or all of these third parties and acknowledge that you are responsible for all fees to be paid and agreements to maintain and comply with in connection with your use of the Services. You hereby release OnPoint and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties. 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.


DISCLAIMERS

THIS CLAUSE APPLIES TO THE SERVICES ONLY. PRODUCT AND PRODUCT SOFTWARE WARRANTIES ARE SET FORTH IN THE LIMITED WARRANTY AND EULA RESPECTIVELY.

ONPOINT, ITS SUPPLIERS AND LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, CONDITIONS OF MERCHANTABITILTY, NON-INFRINGEMENT, TITLE, ACCURACY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE.

ONPOINT AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER, TABLET OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE, RELIABLE, OR FREE FROM VIRUSES OR OTHER HARMFUL CODE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ONPOINT OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY.


LIMITATION OF LIABILITY

IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) ONPOINT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNATIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL OR OTHER INTANGIBLE LOSSES, RESULTING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF ONPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) ONPOINT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ONPOINT OR ONPOINT’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ONPOINT DISCLAIMS ALL LIABILITY OF ANY KIND OF ONPOINT’S LICENSORS AND SUPPLIERS. THE SERVICES PROVIDE YOU THE ABILITY TO SCHEDULE, COLLECT INFORMATION, AND FOR SOME PRODUCT MODELS PROVIDE AUTOMATIC WEATHER BASED UPDATES (PRODUCT DATA) FOR IRRIGATION CONTROL VIA THE PRODUCT. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, AS IS AND AS AVAILABLE. WE DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE, OR THAT PRODUCT INFORMATION OR USE OF THE SERVICES OR THE PRODUCT WILL DECREASE THE WATER CONSUMPTION OF YOUR HOME OR PROPERTY OR ENHANCE THE APPEARANCE OR VALUE OF YOUR TURF, SOD, PLANTS, BUSHES, TREES, OR OTHER FOILAGE AND LANDSCAPE. YOU USE ALL PRODUCT INFORMATION, THE SERVICES, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND ONPOINT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR TURF, PLANTS, SOD, TREES, BUSHES AND OTHER FOLIAGE; BUILDINGS, STRUCTURES AND OTHER OBJECTS; THE COST OF IRRIGATION WATER, SERVICE INTERRUPTIONS, MISSING OR STOLEN DATA, PRODUCT, PRODUCT PERIPHERALS, COMPUTER, TABLET, MOBILE DEVICE, AND INJURY OR DEATH TO PERSONNEL, PETS, AGENTS, INVITEES, LICENSEES, AND BYSTANDERS IN CONNECTION WITH THIS AGREEMENT AND THE USE OF PRODUCT INFORMATION, THE SERVICES, OR THE PRODUCT. PRODUCT INFORMATION PROVIDED BY THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR DIRECT MEANS OF OBTAINING INFORMATION. FOR EXAMPLE, AN IRRIGATION RUN TIME SCHEDULE SET BY THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR OBSERVING THE CONDITION OF YOUR LANDSCAPE DIRECTLY.


CERTAIN EXCLUSIONS

Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.


DISPUTES AND ARBITRATION

For any dispute you have with OnPoint, you agree to first contact us and attempt to resolve the dispute with us informally. If OnPoint has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association ("AAA") under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. You agree to arbitration in the jurisdiction of Santa Clara County, California. These Terms are 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. Nothing in this Section shall prevent OnPoint from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service in any court of competent jurisdiction. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ONPOINT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.


GENERAL TERMS

Notification Procedures and changes to these Terms. OnPoint reserves the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose. We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you. By continuing to access or use the Services and Product after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services and Product.

Entire Agreement/Severability. These Terms, together with the Privacy Policy and any amendments and any additional agreements you may enter into with OnPoint in connection with the Services, shall constitute the entire agreement between you and OnPoint concerning the Services. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.

Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OnPoint without restriction. Any attempted transfer or assignment without OnPoint’s prior written consent is in violation hereof and shall be null and void.

Copyright/Trademark Information. All trademarks, logos, and service marks (Marks) displayed on the Services are the property of OnPoint or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of OnPoint or such respective holders. OnPoint reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.



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