Partner Documents
PLEASE READ THIS AGREEMENT BEFORE USING WEATHERMATIC’S SMARTLINK SERVICES. BY ACCESSING OR USING WEATHERMATIC’S SMARTLINK SERVICES, YOU SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SMARTLINK SERVICES.
This SmartLink Licensing Agreement (“Agreement”) is entered into between the Customer (“Customer”, or “You”) and Telsco Industries, Inc., d/b/a Weathermatic (“Weathermatic”).
1. DEFINITIONS
“Administrator User” means each Customer employee designated by Customer to serve as technical administrator of the SmartLink Services on Customer’s behalf.
“Documentation” means any user guides, online help, release notes, training materials and other documentation provided or made available by Weathermatic to Customer regarding the use or operation of the SmartLink Services.
“Software” means the object code version of any software to which Customer is provided access as part of the SmartLink Services, including any updates or new versions.
“SmartLink Services” refer to the specific Weathermatic’s internet-accessible service that is hosted by Weathermatic or its services provider and made available to Customer over a network on a subscription basis.
“Subscription Term” means the period during which Customer has paid Weathermatic for on-line access and use of the Software through Weathermatic’s SmartLink Services.
“Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the SmartLink Services.
2. SMARTLINK SERVICES
2.1 During the Subscription Term, Customer will receive a nonexclusive, worldwide, limited right to access and use the SmartLink Services during the period defined in Customer’s order, unless earlier terminated in accordance with this Agreement, solely for Your internal business operations subject to the terms of this SmartLink Agreement. You may allow Your Users to use the SmartLink Services for this purpose.
2.2 Support and Maintenance Services are included as a part of the SmartLink Services and entitles Customer to the following: (a) routine telephone or electronic support in order to help Customer locate and correct problems with the Software (material support requests may be separately invoiced); and (b) all extensions, enhancements and other changes that Weathermatic, at its sole discretion, makes or adds to the Software and which Weathermatic generally furnishes, without charge, to all other subscribers of the SmartLink Services, new and/or enhanced services may be offered at an optional additional fee.
3. CUSTOMER RESPONSIBILITIES
3.1 Customer shall not, and shall not permit anyone to: (i) copy or republish the SmartLink Services or Software, (ii) make the SmartLink Services available to any third party other than authorized Users, (iii) modify or create derivative works based upon the SmartLink Services or Documentation, (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SmartLink Services or in the Documentation, or (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SmartLink Services. Subject to the limited licenses granted herein, Weathermatic shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SmartLink Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.
3.2 Customer shall: (a) notify Weathermatic immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Weathermatic immediately and use reasonable efforts to stop any unauthorized use of the SmartLink Services that is known or suspected by Customer user.
3.3 Customer shall be solely responsible for the acts and omissions of its Administrator Users. Weathermatic shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
4. TERMINATION
4.1 Weathermatic reserves the right to suspend delivery of the SmartLink Services if Customer fails to timely pay any undisputed amounts due to Weathermatic, but only after Weathermatic notifies Customer of such failure and such failure continues for fifteen (15) days. Termination shall not release Customer of its payment obligations under this SmartLink Agreement. Customer agrees that Weathermatic shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SmartLink Services resulting from Customer’s nonpayment.
4.2 If Customer terminates this SmartLink Agreement due to a breach by Weathermatic, then Weathermatic shall immediately repay to Customer all pre-paid amounts for any unperformed SmartLink Services scheduled to be delivered after the effective termination date.
5. WARRANTIES; LIMITATION OF LIABILITY
5.1 Weathermatic represents and warrants that it will provide the SmartLink Services in a professional manner consistent with general industry standards and that the SmartLink Services will perform substantially in accordance with the Documentation.
5.2 WEATHERMATIC DOES NOT GUARANTEE THAT THE SMARTLINK SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WEATHERMATIC WILL CORRECT ALL SMARTLINK SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT WEATHERMATIC DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SMARTLINK SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY WEATHERMATIC (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SMARTLINK AGREEMENT. NEITHER WEATHERMATIC NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL WEATHERMATIC OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
5.3 Customer’s exclusive remedy for a breach of Weathermatic’s limited warranty will be replacement of any defective medium. NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF WEATHERMATIC) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SMARTLINK AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SMARTLINK AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SMARTLINK AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.
6. GENERAL PROVISIONS
6.1 Non-Exclusive Service. Customer acknowledges that SmartLink Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Weathermatic’s ability to provide the SmartLink Services or other technology, including any features or functionality first developed for Customer, to other parties.
6.2 Assignment. Either party may assign this SmartLink Agreement or any right under this SmartLink Agreement, with the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this SmartLink Agreement to an acquirer of all or substantially all of the business of such party to which this SmartLink Agreement relates, whether by merger, asset sale or otherwise. This SmartLink Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SmartLink Agreement, provided, however, that such party shall not be relieved of any obligation under this SmartLink Agreement.
6.3 Notices. Except as otherwise permitted in this SmartLink Agreement, notices under this SmartLink Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) by e-mail, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the signature page of this SmartLink Agreement.
6.4 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
6.5 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SmartLink Agreement shall not constitute a waiver of any other or subsequent breach.
6.6 No Third-Party Beneficiaries. This SmartLink Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
6.7 Status of Parties. The parties have the status of independent contractors, and nothing in this SmartLink Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SmartLink Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
6.8 Governing Law. This SmartLink Agreement shall be governed by the laws of the State of Texas and exclusive venue for any disputes related to this Agreement will be the courts located in Dallas County, Texas.
6.9 Counterparts. This SmartLink Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this SmartLink Agreement by facsimile or other electronic transmission (including via pdf) shall constitute due execution of an original counterpart.
1. SmartLink: Equipment, Installation Labor, and Software Bundle
Weathermatic SmartLink consists of landscape irrigation equipment, installation labor (if applicable) and access to its cloud based SmartLink software (collectively, a Bundle) as listed in each customer’s Sales Order. Weathermatic reserves the right to determine which equipment, labor and software services are available under the SmartLink program.
2. Financing Agreement
The equipment and software are offered on a monthly payment basis through the execution of a Financing Agreement to be signed with each Sales Order. If Customer chooses not to take advantage of the financing option, the full 36-month value of the sales order will be due 60 days from the order date. The minimum order size to qualify for financing is $15,000. Any Sales Orders below the minimum may be purchased for cash.
3. Term and Price
The term of each Financing Agreement is thirty-six (36) months. After month thirty-six (36), Customer may renew the SmartLink software license at the rate in effect at that time. The initial pricing for the Bundles is listed in the initial Sales Order. Pricing for subsequent orders is based on pricing in effect at the time of the order.
4. SmartLink Software License Agreement
The SmartLink software license agreement may be found at https://www.weathermatic.com/terms-conditions/ and may be updated from time to time. By accessing or using SmartLink services, Customer signifies acceptance of and agreement to the terms and conditions of the SmartLink software license. If Customer does not agree to the terms and conditions of the SmartLink software license, do not access or use the SmartLink services.
5. Transfer
If Customer wishes to transfer the SmartLink access to another location, Customer will remove the Aircard (cellular communication equipment) from its original location and receive a new controller and weather sensor (if applicable) upon paying a transfer fee of $149, to be installed at a new location. Monthly payments will continue during the transfer process and the initial thirty-six (36) month SmartLink license period will include the time during the transfer process. Customer may transfer the remaining service term & payments to their client or an incoming landscape maintenance contractor upon paying a $149 transfer fee and coordinating with Weathermatic the transfer of the payments.
6. Payments
All payments under each Financing Agreement are to be made electronically (ACH, wire, or other electronic form of payment). At any time, if a payment is more than thirty (30) days past due, all Customer SmartLink access will be suspended until such time as all past due payments are received by Weathermatic. Except for invoiced amounts that Customer has successfully disputed, Customer will pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable Law, calculated daily and compounded monthly.
7. Taxes
Customer is liable for and will indemnify Weathermatic for, any sales and use taxes that may be imposed on all transactions. If required by applicable law, Weathermatic will, in accordance with applicable law, calculate and remit any sales or similar taxes that are required to be paid relating to transactions with Customer and Customer will promptly reimburse Weathermatic for those payments. If Weathermatic receives notice that any sales and/or use taxes are due in addition to what has been collected from the Customer and remitted by Weathermatic, Weathermatic will promptly forward the notice to Customer for payment directly to the taxing authority.
8. Technical Support and Training
Weathermatic will provide Implementation services as detailed in the Partner Agreement. Weathermatic will provide dedicated Technical Support via phone, email, text, and the SmartLink Support portal. Any technical support request for Weathermatic’s personnel requiring an onsite visit outside of scheduled onsite training or warranty support will be billed as additional services.
9. Equipment Protection Plan and Warranty
Weathermatic provides a Total Equipment Protection Plan which maybe found at https://www.weathermatic.com/terms-conditions/ for the equipment sold with the Protection Plan. The Warranty related to the SmartLink Software is contained in the SmartLink Customer Agreement, accessed at https://www.weathermatic.com/terms-conditions/. The terms of the Total Equipment Protection Plan and SmartLink Software warranty may be updated from time-to-time as listed on the Weathermatic.com website. These warranties are effective as long as Customer is current on all Protection Plan payments to Weathermatic.
10. Confidentiality
The parties may disclose to each other information that is confidential (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under Partner Agreement and Customer orders, Customer’s content residing in SmartLink, and all information clearly identified as confidential at the time of disclosure.
A Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, Weathermatic will protect the confidentiality of Customer content residing in SmartLink for as long as such information resides in SmartLink. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law.
11. Limitation of Liability
Except for obligations to make payment under this Agreement, liability for indemnification, liability for breach of confidentiality, or liability for infringement or misappropriation of intellectual property rights, neither Party nor its representatives is liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement, whether or not the possibility of such damages has been disclosed in advance by the other Party or could have been reasonably foreseen by the other Party, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
Weathermatic’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, shall not exceed the total of the amounts paid and amounts accrued but not yet paid to Weathermatic pursuant to this Agreement in the thirty-six (36) month period immediately preceding the event giving rise to the claim.
Without limiting the generality of the foregoing, Customer assumes all risk and liability for the results obtained by the use of any goods in the practice of any process, whether in terms of operating costs, general effectiveness, success, or failure, and regardless of any oral or written statements made by Weathermatic, by way of technical advice or otherwise, related to the use of the goods and software.
12. Governing Law and Jurisdiction.
These Terms and Conditions shall be governed by Texas law without consideration of conflict of laws principles. The state and federal courts of Texas have exclusive jurisdiction, and venue for mediation, litigation and all other proceedings shall be located in Dallas County, Texas.
With the purchase of the Protection Plan add-on to the basic SmartLink Service Plan, Weathermatic provides total coverage of each of your Weathermatic control systems – Controller, Weather Station, Aircard, 2-Wire Decoders and Surge Protectors, that are purchased in conjunction with a Weathermatic SmartLink Service Plan. This Protection Plan is effective as long as the SmartLink Service Plan payments are current.
Covered Items:
SmartLine controllers and modules, SmartLine On-Site Weather Stations, SmartLink Aircards, Weathermatic 2-Wire Decoders and Weathermatic Surge Protectors.
Coverage:
Lightning damage, theft, physical and liquid damage (excluding Acts of God), and defects in materials and workmanship. Hurricane, tornado, flood, and other Acts of God are excluded. Lightning damage on Weathermatic two-wire systems is only covered if Weathermatic Surge Protectors have been properly installed.
Protection Plan Claim:
Two claims per control system within any consecutive 12-month period with a maximum list price value of $1,400 per claim. This Protection Plan extends only to the original professional installation of the Weathermatic products and does not extend to repairs, replacements, or adjustments of Weathermatic products due to misuse, negligence, alteration, modification, tampering or improper installation and maintenance of the product and/or system. Weathermatic’s sole obligation is to repair or replace its products.
There are no other warranties, expressed or implied, including warranties of merchantability and fitness for a particular purpose. Weathermatic will not be liable to any party in strict liability, tort, contract or any other manner for damages caused or claimed to be caused as a result of any design or defect in Weathermatic’s products, or any special incidental or consequential damages of any nature.
Replacement Equipment:
Claims will be fulfilled with identical equipment or, if identical is not available, a comparable model. Weathermatic reserves the right to alter, modify or redesign its products, pricing, warranty, and this Protection Plan at any time without creating any liability for the obsolescence of customer owned parts or products.
Eligibility:
Enrollment can only be made at the time of purchasing the Protection Plan add-on with a SmartLink Service Plan. This Protection Plan is not included as part of the basic SmartLink Service Plan.
Governing Law:
The rights and obligations of the parties hereto, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of Texas without reference to conflict of law principles.
Protection Plan Claim Instructions:
If your device fails or is stolen, contact Weathermatic Customer Care at 1-888-484-3776 to receive your Return Materials Authorization (RMA) number. The Protection Plan claim must be filed within 30 days of the loss.
Return the failed product to your Authorized SmartLink Distributor and provide the RMA number. The distributor will verify the RMA number with Weathermatic Customer Care and provide an over-the-counter exchange of the same equipment as your original, or comparable equipment with similar quality and features.
3301 W. Kingsley Road, Garland, TX 75041
(888) 484-3776
Terms & Conditions
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- To find Weathermatic products, please visit one of our online distributors or retail partners. Weathermatic products are ONLY sold through authorized distributors and professional landscape contractors.
3301 W. Kingsley Road, Garland, TX 75041
(888) 484-3776