WeatherTRAK ET plus 9, 12, 18 & 24 Station Models Warranty and ET Everywhere Customer Service Agreement

TERMS OF SERVICE
Customer Information
Please complete, sign on reverse and return to HydroPoint Data Systems, Inc. Keep a copy for your records.

Customer Name:

Property Address/Service Location

Telephone:

Email:

Controller Serial No.:

WeatherTRAK ET Everywhere Subscription Period: 5 years from date of controller installation


THE FOLLOWING TERMS AND CONDITIONS ("TERMS OF SERVICE") ARE APPLICABLE TO ANY CUSTOMER PARTICIPATING IN THE PALMDALE WATER DISTRICT ("PWD") WEATHERTRAK ET EVERYWHERE SMART IRRIGATION CONTROLLER PROGRAM (THE "PROGRAM").
1. Subscription Service. Except as herein provided, HydroPoint Data Systems, Inc. ("HDS") shall provide the WeatherTRAK ET Everywhere Service (the "Service") during the Term (and thereafter pursuant to Paragraph 3 below) to the customer's WeatherTRAK ET PLUS Controller (the "Controller") installed at the site identified above (the "Service Location"). 2. Term. The Service shall be activated on the installation date of the Controller at the Service Location by an HDS authorized contractor and shall continue for period of five (5) years thereafter (the "Term"). 3. Subscription and Rental Fee. During the Term, the customer shall pay PWD each month a $4.00 subscription fee (the "Monthly Subscription Fee") for the Service and a $10.99 rental fee for the Controller, which shall be automatically invoiced by PWD on the customer's monthly water bill. At least forty-five (45) days prior to the expiration of the Term, the customer shall provide HDS and PWD with written notice of his or her intention to continue the Service after the expiration of the Term. If the customer desires to continue the Service, HDS may increase the Monthly Subscription Fee in an amount not to exceed three percent (3%) per year as determined in the sole discretion of HDS, which shall continue to be automatically invoiced by PWD on the customer's monthly water bill. 4. Service Location Access. The customer shall provide HDS and/or PWD, its representatives, employees, agents, contractors, and subcontractors with reasonable access to the Service Location as necessary for HDS and/or PWD to review, install, inspect, maintain, repair, remove, and/or relocate any equipment or materials, including the Controller, necessary to provide the Service to the Service Location. If the customer owns the site, the customer grants to HDS and PWD permission to enter the site to exercise such right. If the Service Location is not owned by the customer, the customer shall obtain appropriate right of access from the owner.		If the customer is not able to gain right of access to the Service Location from the owner, HDS’ and PWD’s obligations under this Agreement are immediately terminated. 5. Pre-Installation Review. Prior to the installation of the Controller at the Service Location, the customer shall allow an HDS authorized contractor to inspect the Service Location to confirm that the site satisfies the eligibility requirements of the Program. The contractor shall also determine whether the proper installation and operation of the Controller is possible at the Service Location. The contractor shall promptly advise the customer if any additional work (e.g. the installation, repair, replacement, and/or relocation of irrigation lines, sprinkler heads, and electrical lines and outlets) is necessary to meet the Program's eligibility requirements in order to install the Controller at the Service Location and activate the Service. In the event that the customer contracts with the HDS authorized contractor to perform such work, the customer acknowledges and understands that such contractor is not a representative, agent, employee, or contractor of PWD, and that PWD makes no representations or warranties concerning the contractor's ability to perform the necessary work. Any and all fees charged to the customer by such contractor to perform such additional work shall be the customer's sole financial responsibility. To ensure proper installation of the Controller and the ongoing provision of the Service, the customer may be required to provide access paths, electrical or other utility service, move or relocate personal property, or other preparation activities necessary prior to installation. 6. Performance. HDS will use commercially reasonable efforts in keeping with normal industry standards to ensure that the Service is available to the customer twenty-four (24) hours per day, seven (7) days per week. It is possible, however, that there will be interruptions to the Service. Specifically, the customer understands and agrees that the Service may be unavailable from time to

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time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond PWD or HDS' reasonable control. Temporary service interruptions and outages for such reasons, as well as service interruptions and outages caused by the customer or by a Force Majeure Event (as defined in Paragraph 19 below), shall not constitute a failure by PWD or HDS to perform obligations under this Terms of Service, and the customer shall not hold PWD or HDS at fault for loss or damage to the customer's landscape, plants, shrubs, foliage, or any other related plant life due to outages to the Service, and all such claims or possible claims for loss or damage are hereby waived. 7. Interference with Service. If proper operation of the Controller and/or unhindered provision of the Service is no longer possible as a result of interference or obstruction caused by the acts or omissions of the customer, a third party, or any Force Majeure Event, or such interference and obstruction will have negative consequences to the Controller, as HDS and/or PWD may determine in HDS or PWD's discretion, HDS or PWD may immediately terminate the Service without liability upon written notice to the customer and the provisions of Paragraph 11, below, relating to the return of equipment, retrieval, repair and replacement, shall become operative immediately. 8. Customer Problems. If the customer experiences any problems with the operation of the Controller and/or the Service, the customer shall contact HDS directly concerning such issues. HDS shall make arrangements with the customer to send an HDS authorized contractor to inspect the Controller. If it is determined by the contractor that the problems relate to or arise from the customer's misuse, abuse, sole negligence, willful misconduct or unauthorized modification of the Controller as determined, in good faith, by HDS or its contractor, the customer shall be responsible for the cost of repair or replacement of the controller and the payment of any site visit fees. 9. Equipment and Materials . Except as otherwise provided in this Agreement, HDS and PWD shall not be responsible for the maintenance or repair of irrigation lines, sprinkler heads, electric lines and outlets, other utility lines, structures, equipment, materials or other personal or real property owned by the customer; provided, however, that each party shall be responsible to the other for any physical damage or harm such party causes to the other party's personal or real property through the damage-causing party's sole negligence or willful misconduct. Without limiting the foregoing, the customer shall not be liable for loss or damage to the Controller which occurs as a result of any Force Majeure Event, natural disaster, or other casualty loss over which the customer has no control. The customer shall be prohibited from (i) adding any other equipment that would interfere with the operation of the Controller or moving, modifying, disturbing, altering, removing, or otherwise tampering with any portion of the Controller; (ii) permitting anyone other than the personnel or independent contractor authorized by HDS to perform any work on the Controller; or (iii) moving or relocating the Controller to another location or use it at an address other than the Service Location without the prior written consent of PWD and HDS.		If the customer engages in any of the foregoing prohibited activities, PWD may immediately terminate this Agreement or instruct HDS to disconnect the Service, and PWD shall be entitled to recover damages including, but not limited to, the value of the replacement cost of the Controller in addition to reasonable collection costs including, but not limited to, reasonable attorneys' fees. 10. Early Termination. The customer may terminate the Service prior to the expiration of the Term upon providing at least thirty (30) days written notice to PWD and HDS; provided, however, any such early termination shall result in a termination fee in the amount of Two Hundred Dollars ($200.00), which shall be automatically invoiced by PWD on the customer's monthly water bill, provided HDS is not then in default under this Terms of Service. *11. Equipment Return, Retrieval, Repair and Replacement.* Upon termination of the Service and/or this Terms of Service (with the exception of the termination of this Terms of Service as a result of the expiration of the Term) as provided herein, including any early termination under Paragraph 10, above, PWD or HDS shall have the right, at PWD'S or HDS' option, to remove the Controller and its components, or leave such Controller and components in place and assigning title and interest in such Controller and components to the customer, it being understood that no further notice or action is required to accomplish the assignment contemplated hereunder. Failure of the customer to allow PWD or HDS to remove the Controller within ten (10) days after termination of the Service and/or Terms of Service shall result in a charge to the customer's account by PWD equal to the full retail cost of replacement of the unreturned Controller. In addition, the customer agrees to pay for the repair or replacement of any damaged Controller (normal wear and tear excluded), together with any costs incurred by PWD in obtaining or attempting to regain possession of the Controller; provided, however, that the customer shall not be responsible for any such removal costs if termination of the Service and/or this Term of Service is due to HDS' default. 12. Title. Title to the Controller shall remain with PWD during the Term. The customer shall keep the Controller free and clear of all liens, encumbrances and security interests. Upon expiration of the Term, and provided that the customer is not in breach of this Terms of Service, all rights, title and interest in and to the Controller shall automatically vest in the customer without any further action required on the part of PWD, HDS, or the customer. Once the customer owns the Controller, the customer shall be responsible for the payment of the cost of maintenance and repair of the Controller, if any, which shall be a matter between HDS and the customer directly, and shall be subject to the terms and conditions of any extended warranties obtained by the customer from HDS directly. The customer shall also be responsible for the payment of the Monthly Subscription Fees for the Service necessary to operate the Controller which shall be billed pursuant to Paragraph 3 of this Terms of Service, and subject to the terms and conditions of this Terms of Service.

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13. Default; Suspension of Service; Termination. No express or implied waiver by PWD or HDS of any event of default shall in any way be a waiver of any further subsequent event of default. Nothing herein, including, but not limited to termination, shall relieve the customer of his or her obligation to pay PWD all amounts due.

a. Default by Customer. The customer shall be in default under this Terms of Service if:

(i)	The customer is more than thirty (30) days past due with respect to any payment required hereunder;
(ii)	The customer otherwise has failed to comply with the terms of this Terms of Service; or
(iii)	The customer files or initiates proceedings or has proceedings filed or initiated against him or her, seeking liquidation, reorganization or other relief (such as appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law and such proceedings are not dismissed within sixty (60) days.

b. PWD's and HDS' Right to Terminate and Termination Charge. In the event the customer does not cure any such default within thirty (30) days of written notice of default from PWD or HDS, PWD or HDS shall have the right, at its sole option, to exercise any of the following remedies:

(i)	To suspend (or in the case of PWD, to immediately authorize HDS to suspend) the Service to the Service Location until such time as the underlying noncompliance has been corrected without affecting the customer's on-going obligation to pay District any amounts due hereunder. In the event of any dispute between the customer and PWD as to any purported default by the customer, HDS shall be entitled to rely on such notice from PWD in suspending the Service and is under no obligation to perform any independent investigation as to whether such default exists and shall not be liable for any misinformation received from PWD with respect to any purported defaults;
(ii)	Terminate the Service and this Term of Service; or
(ii)	(iii) Pursue any other remedy available by law or in equity.

c. Default by HDS. HDS shall be in default under this Terms of Service if:

(i)	HDS has failed to comply with the terms of this Terms of Service; or
(ii)	HDS files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law and such proceedings are not dismissed within sixty (60) days.

d. Customer's Right to Terminate and Termination Charge. In the event HDS does not cure any such default within thirty (30) days of written notice of default from the customer, the customer shall have the right to terminate the Service and this Terms of Service immediately, and Customer shall not be subject to any early termination charge or any other charge for PWD's or HDS' removal of the Controller from the Service Location.

15. Limitation of Liability . PLEASE READ THIS SECTION CAREFULLY AS THIS SECTION CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY.

a. Limited Warranty. HDS warrants that the Controller shall be free from original defects in material and workmanship for a period of five (5) years from the date of installation (the "Warranty Period"). Subject to Paragraph 8, above, should the Controller fail to operate properly at any time during the Warranty Period, the Customer shall promptly notify HDS of such failure and HDS shall repair or replace parts or components of the Controller found to be defective under normal use or service. Upon the customer's ownership of the Controller as provided in Paragraph 12, above, the customer may have the option to purchase an extended warranty from HDS (if offered by HDS at that time) for an additional fee to be determined in the sole discretion of HDS. HDS shall not be responsible for repair or replacement of products that have been altered, modified, abused, not properly cared for, damaged, or used in service for which they were not designed. Specifically excluded from this warranty are failures due to lightning strikes, misuse, electrical power line surge damage, infestation of pests, improper installation by user, improper power supply attachment, short circuiting of valve wire outputs, water damage and physical abuse, and Force Majeure Events.

THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES. EXCEPT AS OTHERWISE STATED IN THIS TERMS OF SERVICE, PWD AND HDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF


MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS TERMS OF SERVICE, THE FOREGOING LIMITED WARRANTY SHALL CONSTITUTE PWD'S AND HDS' SOLE LIABILITY TO THE CUSTOMER AND UNDER NO CIRCUMSTANCES SHALL PWD OR HDS BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA OR USE OR DAMAGE TO PROPERTY, PLANTS, FOILAGE, OR LANDSCAPING, SUFFERED BY THE CUSTOMER OR ANY THIRD PARTY, ARISING IN CONNECTION WITH THIS TERMS OF SERVICE OR THE PROVISION OF THE SERVICES HEREUNDER (INCLUDING ANY CONTROLLER INSTALLATION AND SERVICE IMPLEMENTENTATION DELAYS AND/OR FAILURES), OR THE PWD PROGRAM, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF PWD AND HDS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. *b. PWD's Disclaimer.* Customer acknowledges that the (i) site preparation work identified in Paragraph 5, above, (ii) the installation and operation of the Controller, (iii) the activation and ongoing provision of the Service, and (iv) the repair and replacement of the Controller under the warranty set forth in subparagraph (a) of this Paragraph 15, above, is provided by HDS and its authorized representatives and contractors, over which PWD does not exercise and disclaims any control. PWD neither represents nor warrants the qualifications or ability of such third parties to perform the work necessary to meet the eligibility requirements of the Program, to install the Controller, to activate and provide the Service, or to properly repair the Controller under the limited warranty. PWD is not responsible for the Service and the data that is provided in connection with the Service, and assumes no responsibility for the information and data provided by such Service. PWD SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURANCY OR THE QUALITY OF THE CONTROLLER OR SERVICE, AND MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING (i) THE PERFORMANCE OF THE CONTROLLER AND THE SERVICE, (ii) THAT THE CUSTOMER WILL SEE ANY REDUCTION IN WATER USE OR COST, OR (iii) THAT THE CUSTOMER WILL BE EXEMPT FROM WATER-USE RESTRICTIONS OTHER THAN UNDER RESOLUTION NO. 07-09, AS A RESULT OF PARTICIPATING IN THE PROGRAM.		The customer understands that his or her participation in the Program, including the operation of the Controller and the subscription to the Service, is voluntary and done at the customer's own risk, and PWD assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such participation. *c. Damage, Loss or Destruction of Landscaping, Personal Property and/or Real Property.* PWD does not manufacture the Controller nor provide the Service, and both PWD and HDS assume no responsibility whatsoever for any damages to or loss or destruction of any of Customer's irrigation system(s), landscaping, plants,shrubs, foliage, electrical outlets and lines, utility lines, structures, equipment, personal property, and real property which may result from the customer's use of the Controller and Service, or from the activation, deactivation, installation, maintenance, replacement, or removal of the Service or Controller. PWD does not warrant that data sent by the Service will be transmitted in uncorrupted form or within a reasonable period of time. 16. Indemnification. The customer agrees to indemnify, defend, and hold PWD and HDS, and each of its directors, employees, representatives, officers, agents, contractors, successors and assigns (collectively, the "Indemnified Parties"), free and harmless from any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, deficiencies, including interest, penalties, reasonable attorneys' fees and costs, that the Indemnified Parties may incur as a result of a breach by the customer of any term in this Terms of Service, or which may result from any act or omission of the customer, including, but not limited to, personal injury, property damage or damage to business character or reputation; provided, however, the customer's obligation hereunder shall be allocated in accordance with comparative negligence principles under California law where the claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, deficiencies, including interest, penalties, reasonable attorneys' fees and costs results from the Indemnified Parties' own negligence (other than its or their sole negligence) or willful misconduct. 17. Data . Customer understands and acknowledges that his or her participation in the Program and use of the Controller and Service will generate data and information concerning the customer's water usage which may be aggregated and used by PWD and/or HDS for promotional, marketing, research, and historical purposes, and the customer authorizes PWD and HDS to use and disclose to the public and third parties such data for such purposes;

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provided, however, PWD and HDS are prohibited from disclosing any personally identifiable information of the customer including, but not limited to, the customer's name, billing address, property address, credit card information, and other account information.

18. Binding Nature; Assignment. This Terms of Service shall be binding upon and inure to the benefit of the parties, including HDS, and their/its respective successors and permitted assigns. The customer may not assign this Terms of Service or any of the customer's rights hereunder to another party or parties without the prior written consent of PWD.

19. Force Majeure. PWD or HDS shall not be liable for failure or delay in performing any of its obligations hereunder if such failure or delay is due to circumstances beyond PWD or HDS' reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services (each such occurrence shall be referred to herein as a "Force Majeure Event").

20. Remedies and Severability . All rights and remedies of PWD and HDS hereunder are cumulative and may be exercised concurrently or separately. If any provision of this Terms of Service, or the application of any provision to any person or circumstance, shall be held invalid, the remainder of this Terms of Service, or the application thereof to persons or circumstances other than those as to which it is held invalid, shall remain in full force and effect.

21. Amendment and Waiver. This Terms of Service may not be amended except upon the written consent of Customer and PWD. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

22. Entire Agreement. This Terms of Service, and any other document or agreements specifically identified in this Terms of Service, contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein.

23. Acceptance of Services . The activation of the Service shall indicate HDS' acceptance of this Terms of Service. The Customer's use of the Service or signature below constitutes acceptance of this Terms of Service by the customer.

24. Governing Law. The validity, interpretation, and performance of this Terms of Service shall be controlled by and construed under the laws of the State of California. The parties hereto do hereby consent to the jurisdiction of the California courts in the event any dispute arises in conjunction herewith.

25. Notice. Written notices shall be deemed to have been given when mailed by the United States mail, postage prepaid, addressed to the parties to this Terms of Service.

26. Authority to Sign. Customer represents that he or she has the authority to execute this Agreement.

By signing below, the customer agrees to be subject to the terms and conditions of this Terms of Service.

Date		Signature