Terms and Conditions


Agreement

This Agreement governs your purchases of bottled water and other beverages and related products ("Products") and Equipment (as defined below) from Nestlé Waters North America Inc. ("Company"). The information you provide will be treated in accordance with our Privacy Policy, available here. If you do not provide Company all of the requested information, we may not be able to provide you with the requested goods or services.

THIS AGREEMENT CONTAINS A PROVISION THAT GENERALLY REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE. SEE THE DISPUTE RESOLUTION SECTION BELOW FOR MORE INFORMATION.

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Delivery

Customer will purchase Products from Company as ordered by Customer from time to time. Company reserves the right to subject all orders to a minimum delivery requirement as determined by Company from time to time per delivery, exclusive of any taxes, fees or surcharges. All orders are subject to credit approval. Service may not be available in all areas.

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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 ("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.

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Use of equipment and bottles

Company will install the 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. 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 three months. 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.

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Term

The Initial Term of this Agreement will start on the earlier of: 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; or on the date when Customer authorizes payment for Products, 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' 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 may 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.

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Prices

(a) DELIVERY CUSTOMERS: Equipment rental fees and prices for bottled water and other beverages and related products will not be increased during the first two 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 per month. (c) ALL CUSTOMERS: Prices for Products and rental fees are subject to change. 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.

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Charges; surcharges, fees, deposits and refunds

CUSTOMER WILL PAY ALL CHARGES FOR PRODUCTS, EQUIPMENT, AND ALL APPLICABLE SURCHARGES, TAXES AND FEES, INCLUDING, WITHOUT LIMITATION, (A) ALL BOTTLE DEPOSITS UP TO $20 PER BOTTLE AND/OR ACCOUNT DEPOSITS UP TO $100; (B) ANY APPLICABLE DELIVERY FEES OF UP TO $20 PER DELIVERY; (C) A FEE OF UP TO $5 FOR EACH PAPER INVOICE IN LIEU OF, OR IN ADDITION TO, AN ELECTRONIC INVOICE; (D) A FEE OF UP TO $8.99 PAYABLE IN THE EVENT CUSTOMER CANCELS A SCHEDULED DELIVERY ON LESS THAN 24 HOURS’ PRIOR NOTICE; (E) A FEE OF UP TO $50 FOR THE RECONDITIONING OF EACH COOLER LEASED BY CUSTOMER AND PAYABLE UPON THE CANCELLATION OF SERVICE; (F) IN THE EVENT CUSTOMER IS IN DEFAULT ON THE PAYMENT OF ANY INVOICE FOR A PERIOD EXCEEDING 150 DAYS, A REINSTATEMENT FEE OF UP TO THE SUM OF (I) THE OUTSTANDING AMOUNT PLUS (II) 25% OF SUCH OUTSTANDING AMOUNT; AND (G) ALL APPLICABLE STATE BOTTLE DEPOSITS AND REDEMPTION VALUE ON ANY FREE AND PURCHASED PRODUCTS UPON CUSTOMER'S RECEIPT OF COMPANY'S INVOICE.

Customer acknowledges and agrees that, promptly after the delivery of any Products and Equipment, Company may invoice customer for all delivered Products and Equipment as well as any applicable surcharges, taxes and fees. 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 a late fee not to exceed $20 per month. If the late fee exceeds the maximum rate allowed by applicable 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.

For recurring Deliveries with automatic payment, Company will charge Customer’s authorized payment method per the billing period described when Customer authorized automatic payment. Customer can update the payment method by visiting the ReadyRefresh website. If Customer's payment method expires and Customer does not update or change the payment method, Customer shall remain responsible for any uncollected amounts.

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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.

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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 Equipment rental to the end of the term; (iii) subject Customer to a reinstatement fee as described in the section entitled “Charges; surcharges, fees, deposits and refunds;” and/or (iv) repossess the Equipment and Bottles, and Customer hereby waives notice, legal process, or liability for trespass or other damage by Company or its third-party representatives, or, Company may 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 or reimburse 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.

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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 to the number Customer provides. 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. Company’s Privacy Policy is available on the ReadyRefresh website.

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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 ReadyRefresh.

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Miscellaneous

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. NWNA reserves the right to change any of the terms of this Agreement at any time for any reason. NWNA will notify Customer of such changes by posting an updated Agreement here or by asking Customer to read and accept a new version. Customer’s continued purchase or receipt of Products after an updated Agreement is posted constitutes acceptance of the modified Agreement. Customer cannot modify this Agreement unless NWNA agrees to the change in writing. 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. This Agreement, together with any additional terms, rules, the Company’s Privacy Policy, and any other regulations, procedures and policies which Company refers to and which are hereby incorporated by reference, contain the entire understanding and agreement between Customer and Company concerning this Agreement, and transactions involving Products, Bottles, and Equipment and supersedes any and all prior understandings. To the extent that there is a conflict between this Agreement and any additional terms for Products, Bottles, or Equipment, the additional terms shall govern. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and the Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision that must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement.

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Disclaimer of Warranty

COMPANY DOES NOT MANUFACTURE THE EQUIPMENT PROVIDED TO CUSTOMER, IF ANY, AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY, 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.

Some jurisdictions do not allow exclusion of implied warranties, so the above exclusions may not apply to Customer.

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Dispute Resolution

TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AND COMPANY AGREE TO SUBMIT EXCLUSIVELY ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATING TO PRODUCTS, EQUIPMENT, BOTTLES, THIS AGREEMENT OR ANY OTHER POLICIES OR OTHER TERMS INCORPORATED THEREIN (INCLUDING THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, ENFORCEABILITY, VALIDITY, OR RIGHTS UNDER ANY OF ANY OF THE FOREGOING) (EACH, A "DISPUTE") FOR RESOLUTION BY CONFIDENTIAL, INDIVIDUAL, BINDING ARBITRATION, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF CUSTOMER’S CLAIMS QUALIFY.

THE PARTIES AGREE THAT THE ARBITRATOR, AND NOT ANY FEDERAL, STATE, PROVINCIAL OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTES RELATING TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY OR FORMATION OF THIS AGREEMENT TO ARBITRATE, INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT TO ARBITRATE IS VOID OR VOIDABLE. THE ARBITRATOR SHALL ALSO BE RESPONSIBLE FOR DETERMINING ALL THRESHOLD ARBITRABILITY ISSUES, INCLUDING ISSUES RELATING TO WHETHER THE TERMS ARE UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION, INCLUDING WAIVER, DELAY, LACHES OR ESTOPPEL.

TO THE FULLEST EXTENT PERMITTED BY LAW: (I) CUSTOMER EXPRESSLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO ARBITRATE A DISPUTE AS A CLASS ACTION; AND (II) CUSTOMER ALSO EXPRESSLY WAIVES CUSTOMER’S RIGHT TO A JURY TRIAL.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THIS AGREEMENT AS A COURT WOULD.

THE ARBITRATION WILL BE HELD IN CONNECTICUT. IF CUSTOMER INFORMS COMPANY THAT THIS LOCATION IS NOT CONVENIENT FOR CUSTOMER, COMPANY WILL WORK WITH CUSTOMER TO DETERMINE A MUTUALLY CONVENIENT LOCATION. ANY DISAGREEMENTS REGARDING THE FORUM FOR ARBITRATION WILL BE SETTLED BY THE ARBITRATOR.

DISPUTES WILL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ACTION. IN THE EVENT THAT ARBITRATION IS NOT PERMITTED BY APPLICABLE LAW: (I) THE PARTIES EXPRESSLY AGREE THAT ANY DISPUTE WILL BE BROUGHT AND HEARD SOLELY AND EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF COMPETENT JURISDICTION LOCATED IN CONNECTICUT. THE PARTIES WAIVE ANY PLEA OR DEFENSE THAT SUCH COURTS ARE NOT THE APPROPRIATE VENUE OR THAT THEY ARE NOT SUBJECT TO PERSONAL JURISDICTION OF SUCH COURTS.

THE ARBITRATION WILL BE ADMINISTERED BY JAMS. CUSTOMER MAY OBTAIN A COPY OF THE RULES OF JAMS BY CONTACTING THE ORGANIZATION. EACH PARTY SHALL AGREE ON ONE ARBITRATOR TO CONDUCT THE ARBITRATION. IN THE EVENT THE PARTIES CANNOT AGREE ON AN ARBITRATOR, THE ARBITRATOR WILL BE SELECTED IN ACCORDANCE WITH THE JAMS RULES.

IF CUSTOMER INITIATES ARBITRATION, CUSTOMER'S ARBITRATION FEES WILL BE LIMITED TO THE FILING FEE SET FORTH BY JAMS. REGARDLESS OF WHO INITIATES ARBITRATION, COMPANY WILL PAY CUSTOMER’S SHARE OF ARBITRATION FEES (NOT INCLUDING ATTORNEYS’ FEES) UP TO A MAXIMUM OF $2,500. IF THE ARBITRATOR RULES AGAINST COMPANY, IN ADDITION TO ACCEPTING WHATEVER RESPONSIBILITY IS ORDERED BY THE ARBITRATOR, COMPANY WILL REIMBURSE CUSTOMER’S REASONABLE ATTORNEYS’ FEES AND COSTS UP TO A MAXIMUM OF $5,000, REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF CUSTOMER’S CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH. IN ADDITION, IF THE ARBITRATOR RULES IN COMPANY’S FAVOR, IT WILL NOT SEEK REIMBURSEMENT OF ATTORNEYS’ FEES AND COSTS, REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF CUSTOMER’S CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, TO THE EXTENT EITHER PARTY IN ANY MANNER HAS VIOLATED OR THREATENED TO VIOLATE THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE NON-BREACHING PARTY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE, PROVINCIAL OR FEDERAL COURT OF COMPETENT JURISDICTION.

EXCEPT AS OTHERWISE PROHIBITED BY LAW, ANY DISPUTE MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE THE CAUSE OF ACTION ARISES.

IN THE EVENT THAT ANY PROVISION OF THE AGREEMENT TO ARBITRATE IS HELD INVALID OR UNENFORCEABLE, ALL OTHER TERMS WITHIN THE AGREEMENT TO ARBITRATE SHALL REMAIN IN FULL FORCE AND EFFECT.

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Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY LAW, AND EXCEPT AS EXPRESSLY ESTABLISHED IN THIS AGREEMENT, COMPANY IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) IN ANY WAY RELATED TO THE SITE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250).

Some jurisdictions, such as New Jersey, do not allow limitations on damages. In the event the applicable jurisdiction does not allow the limitation on liability to the extent indicated above, our liability in such jurisdictions shall be limited to the extent permitted by law.

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