Customer will purchase from Company, Company's bottled water, ready to drink iced teas, and other beverage products and related products ("Products") as ordered by Customer from time to time: Company reserves the right to subject all orders to a minimum delivery requirement of either $20.00 or any two Products as determined by Company from time to time per delivery, exclusive of any taxes, fees or surcharges. All orders are subject to credit approval. Where a customer receives Included Equipment (defined below) and skips more than two monthly deliveries in the twelve month period(s) beginning with the month in which service begins, Company reserves the right to charge that customer a "Skip Fee" of $4.99 per month for each skipped month after the second skipped month. Service may not be available in all areas.
2. LEASED EQUIPMENT:
If Customer requests, Company will lease to Customer, and Customer will pay Company lease payments for, the coolers, filtration systems and/or equipment as agreed between Company and Customer ("Leased Equipment"). Customer acknowledges that this is a true lease. If Customer purchases equipment from Company, Customer will be responsible for all repair or replacement costs unless otherwise specified in Company's warranty, if any. AccuPure plans include standard installation of up to one hour's labor and 25 feet of standard installation equipment; Customer is responsible for all additional labor and materials costs. Installation will begin at the point Customer designates, Company’s responsibility and equipment apply only from that point to the AccuPure delivery point, which will be designated by Customer. Customer will provide any permission necessary for alteration of the premises such as cutting or drilling.
3. EQUIPMENT FOR CERTAIN PLANS:
If Customer has selected a plan that includes use of equipment, Company will provide the equipment designated by Company ("Included Equipment") for Customer's use for the agreed upon time and at the agreed upon price. If Customer has selected (i) upgraded Included Equipment, Customer will pay Company the monthly upgrade fee specified; or (ii) a plan with no Included Equipment, Company will not provide any equipment to Customer.
4. USE OF LEASED EQUIPMENT, INCLUDED EQUIPMENT AND COMPANY'S BOTTLES:
Company will install the Leased Equipment or Included Equipment, as applicable (collectively, "Equipment"), at Customer's address provided by Customer to Company. If Customer's negligence, abuse or misuse causes damage requiring repair or replacement, Customer will pay Company all such costs on demand. The Equipment and multi-gallon bottles ("Bottles") are, and will at all times be, Company's sole and exclusive property, and Customer will have no right, title or interest except as provided in this Agreement. Customer can purchase the Equipment only if Customer and Company agree in writing. Customer will use the Equipment and all Bottles only for Company's Products and will not reuse or refill Bottles for any purpose whatsoever. Customer will at all times operate and maintain the Equipment and Bottles in a safe, sanitary and proper manner in accordance with Company's instructions and clean and maintain the Equipment periodically and at least once every six months, as outlined in the Company-approved guidelines. Customer (i) will not remove the Equipment from Customer's location without Company's prior written consent, (ii) will not alter the Equipment in any manner, (iii) will permit only Company to repair the Equipment, (iv) will notify Company immediately if the Equipment or any Bottles are stolen, lost, damaged or destroyed, and (v) will keep the Equipment and bottles free and clear of, and promptly notify the Company of, any levies, liens and encumbrances. Company may enter Customer's premises at reasonable times to inspect and repair the Equipment and to deliver or pick up Bottles.
The Initial Term of this Agreement will start on the date that the Equipment, if any, is installed by Company or, for Customers who purchase Products only, on the first date that such Products are delivered to Customer, and will continue for the period set forth on the order form. If no date is set forth on the order form then the Initial Term shall be for one month from the date of first delivery. Upon expiration of the Initial Term, this Agreement will continue in effect on a month to month basis until terminated by either Company or Customer on 30 days' written notice. Notwithstanding the foregoing, the Initial Term for AccuPure Customers is one year from the date of installation. A Customer who terminates this Agreement before the end of the Initial Term will be subject to a one time early termination charge to compensate Company for, as applicable, the value of equipment and/or free Products or services provided to Customer and administrative, installation, labor and other costs of Customer's account, as follows: (a) Delivery Customers: up to $25; and (b) AccuPure Customers: up to $150; ALL CUSTOMERS: Upon expiration or termination of this Agreement, Customer will permit Company to retrieve the Equipment and/or Bottles, which will be in the same condition as received by Customer, reasonable wear and tear excepted. If Customer fails to return any Equipment or Bottles, Customer will pay Company the full replacement value.
(a) DELIVERY CUSTOMERS: Leased Equipment rental fees and bottled water and ready to drink tea prices will not be increased during the first six months or during the Initial Term of this Agreement, whichever is shorter. Any price increase during the balance of the Initial Term will not exceed Company's then current regular non-introductory prices. (b) ACCUPURE CUSTOMERS: Leased AccuPure Equipment rental fees will not be increased during the first six months of the Initial Term of this Agreement. Any rental fee increase during the balance of the Initial Term will not exceed $5.00 per month. (d) ALL CUSTOMERS: Prices for Products and rental fees are subject to change at any time on thirty (30) days' notice, subject to the periods provided in this Section 6, if any. Prices of commodities such as coffee, cocoa, sugar, paper and related products will be reviewed on a regular basis and are subject to increase at any time.
7. CHARGES; SURCHARGES, FEES AND DEPOSITS:
Customer will pay all charges for Products, Equipment, purchased equipment, and all applicable surcharges, taxes and fees, including, without limitation, (a) all bottle deposits up to $10 per Bottle and/or account deposits up to $100; (b) any applicable delivery fees of up to $10.00 per delivery; (c) the Skip Fee, if applicable; and (d) all applicable State bottle deposits and redemption value on any free and purchased Products upon Customer's receipt of Company's invoice. Company may change its administrative, surcharges or other charges or deposit fees at any time with prior notice to Customer. If Customer does not pay any charge within thirty (30) days of the invoice date, Customer will pay Company the greater of (i) a late fee not to exceed $20 per month, or (ii) interest of 1.5% per month on any unpaid amount from the invoice date until paid. If the late fee or interest rate exceeds the maximum rate allowed by law, the late charge will be equal to such maximum rate. Customer will make all payments due without set-off, counterclaim or defense. Payment of invoice by Customer is an acknowledgment of acceptance and delivery. At Company’s sole discretion, applicable refunds, if any, may be credited back to the credit card used for payment.
8. RISK OF LOSS:
Customer assumes risk of loss or damage to the Equipment and Bottles in Customer's possession and is responsible for all liability resulting from their use and operation. Customer will pay Company upon demand costs to repair or replace any lost, stolen, damaged or destroyed Equipment and/or Bottles, as determined by Company. Customer will, to the full extent permitted by law, indemnify, defend and hold harmless Company, its parent, affiliates, officers, directors, employees and agents from any loss, damage, liability, cost, fine or expense, including without limitation, reasonable attorneys' fees, incurred in connection with this Agreement. This provision will survive termination or expiration of this Agreement.
9. DEFAULT BY CUSTOMER; COMPANY'S REMEDIES:
Customer will be in default if Customer: (a) fails to pay any amount when due; (b) fails to perform or violates any other term or condition and fails to cure the same within ten (10) days after the occurrence; or (c) abandons or abuses the Equipment or any Bottles. Upon default, Company will have the right to exercise any or all of the following cumulative remedies and any other rights or remedies it may have at law or in equity: (i) terminate this Agreement without relieving Customer of its accrued and continuing obligations; (ii) declare immediately due and payable (as liquidated damages and not as penalty) all outstanding charges plus the balance of the Leased Equipment rental to the end of the term; and/or (iii) repossess the Equipment and Bottles, Customer waiving notice, legal process, or liability for trespass or other damage, or, declare it a total loss, and Customer will pay Company its replacement value. Customer waives any requirement that Company post a bond or other undertaking in a repossession proceeding. Customer will pay all of Company's costs, including reasonable collection and/or attorneys' fees, as a result of Customer's default or the exercise of Company's remedies.
10. MOBILE PHONE DELIVERY SERVICE:
Company provides a mobile messaging service ("Mobile Messaging Service") to its Customers. The Mobile Messaging Service is utilized to provide information to Customers via their mobile phones about upcoming delivery of their purchases. Text messages or phone calls may be made using an auto dialer or prerecorded voice. If Customer wishes to receive the Mobile Messaging Service, Customer agrees to provide Company with a valid mobile number and to notify Company immediately of any changes to Customer’s mobile number. Customer agrees that Company may make phone calls or send text messages through Customer’s wireless provider. Company does not charge recipients to receive text messages, however, messaging and data rates may apply. CUSTOMER IS RESPONSIBLE FOR ALL CHARGES AND FEES ASSOCIATED WITH TEXT MESSAGING IMPOSED BY THEIR WIRELESS SERVICE PROVIDER. Customer will receive approximately 5 messages per delivery. Customer agrees to indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs of any kind (including reasonable attorneys. fees), resulting from any activity related to Customer’s use of the Mobile Messaging Service, or from Customer providing Company with a mobile number that is not Customer’s own mobile number. Customer agrees that Company will not be liable for failed, delayed, or misdirected delivery of any information sent through the Mobile Messaging Service; any errors in such information; any action Customer may or may not take in reliance on the information or Mobile Messaging Service; or any disclosure of information to third parties resulting from Customer’s use of the Mobile Messaging Service.
11. ELECTRONIC BILLING AND NOTIFICATIONS:
Customer agrees that Company may provide Customer with information regarding this Agreement by posting the information in Customer’s account on the ReadyRefresh website and that doing so satisfies any obligation Company may have to provide the information in writing. Customer may have the right to withdraw consent and, when required by law, Company will provide Customer with paper copies upon request. To receive, access, and retain the notices, Customer must have Internet access and a computer or device with a compatible browser; software capable of viewing PDF files; and the ability to print or download and store PDF files. Customer confirms that Customer is able to receive, access, and retain information on the website. Customer may withdraw consent or update contact information by calling Ready Refresh.
Customer may not directly or indirectly transfer any of its rights under this Agreement and will not allow any third party to take possession of the Equipment or Bottles without Company's prior written consent. The terms of this Agreement may be waived or amended only in writing signed by Company and Customer. Failure or delay in exercising any right will not constitute a waiver. Customer grants Company authority to conduct credit investigations and Company retains the right to terminate this agreement at any time based on such information.
13. DISCLAIMER OF WARRANTY:
COMPANY DOES NOT MANUFACTURE THE EQUIPMENT PROVIDED TO CUSTOMER, IF ANY, AND, UNLESS OTHERWISE SPECIFICALLY SET FORTH IN WRITING BY COMPANY, HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS SUITABILITY OR FITNESS FOR ANY PURPOSE OR MERCHANTABILITY. CUSTOMER ACCEPTS THE EQUIPMENT "AS IS." NO DEFECT IN OR UNFITNESS OF THE EQUIPMENT, NO LOSS OR DAMAGE AND NO OTHER CONDITION WHATSOEVER WILL RELIEVE OR SUSPEND CUSTOMER'S OBLIGATIONS, WHICH ARE ABSOLUTE AND UNCONDITIONAL. TO THE FULL EXTENT PERMITTED BY LAW, COMPANY WILL INCUR NO LIABILITY WHATSOEVER TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN OR CONDITION OF THE EQUIPMENT OR ITS USE, OPERATION OR FUNCTION.