The service Agreement (the “Agreement”) between WG America Company, d/b/a “The Water Guy” ™, or affiliates (“WGA”) and you (the “Customer”) includes an order form (the “Order Form”) and these Agreement Terms of Service (the “Agreement Terms”).
By accepting the terms and conditions of this Agreement, the Customer is agreeing to purchase from WGA, and agreeing that WGA is authorized to provide Customer with the products, services and equipment which Customer authorized and which Customer may order from WGA from time to time. In each case, these Agreement Terms will apply.
WGA may change any or all prices, products, promotions or services provided. If Customer is not under an Agreement for a specified minimum term, WGA may make those changes any time without prior notice. If Customer is currently under an Agreement for a specified minimum term, WGA may make those changes any time after the minimum term of the Agreement expires.
WGA may also change these Agreement Terms on thirty (30) days’ notice at any time by posting the changed terms at https://www.waterguys.com/terms-of-service/, or by emailing notice of the change to Customer at the last email address provided by Customer or by mailing Customer written notice of the change to the service address.
If Customer continues to use WGA’s products and services for more than 60 days after WGA has provided notice of any changes in prices, products, promotions, services or these Service Terms, then WGA will consider such continued use as Customer’s agreement to such changes.
If Customer does not agree with the change(s), then Customer must notify WGA within 60 days of notice of the change(s). Upon such notification from Customer, WGA may, at its option (a) allow the Customer to continue on the original terms or (b) allow Customer to cancel its service and the Agreement without incurring the cancellation or fee for unexpired monthly services referred to in this Agreement.
Notwithstanding the above, WGA may pass through price or fee increases, such as those related to delivery, fuel, taxes, processing, administrative services or other services, as well as late fees, without providing Customer the right to reject the change(s) or cancel its service or this Agreement.
Products and Services
Products provided by WGA include bottled water products, coffee service products, accessories, labels, office products, and other supplies and equipment (collectively, the “Products”). Services provided by WGA include equipment rentals, repairs and purchases, and water filtration services (collectively, the “Services”).
Term and Termination
Products and Services are provided for the minimum term (if any) specified on the Order Form, and otherwise shall run on a month-to-month basis until terminated by either party with thirty (30) days’ written notice. WGA reserves the right to terminate this Agreement for other reasons as described elsewhere in these Agreement Terms.
Credit and Payments
Customer consents to WGA obtaining credit information from any credit reporting agency or other source about Customer before providing service or at any time. If the person entering into the Agreement is representing a company or business, these credit reports may cover its principal owners as well as the business itself. Owners of a company or business may also be required to execute this Agreement and consent to WGA obtaining credit information regarding them in their individual capacities.
WGA is authorized to automatically charge Customer’s credit card on file for all charges for Services as incurred. Customer will notify WGA of any credit card account information change or expiration upon 10 days of learning of such change or expiration. If WGA cannot charge Customer’s credit card account on file for any reason, Customer will be notified and shall make payment in another form acceptable by WGA within 5 business days. Customer has the right to cancel this credit card payment arrangement and will notify WGA in writing of such cancellation within 3 days after the last billing date and at least 3 days before the next billing date as determined by WGA. If Customer cancels this credit card payment arrangement but still intends to use the Products and Services, then Customer must provide a different form of payment and consent to a credit check. WGA reserves the right to change credit and payment terms on thirty (30) days’ prior notice or without prior notice if Customer is late in payment.
All charges for Services and Products provided and applicable taxes, including all deposits, surcharges, shipping, handling, freight, fees, finance, late, and service charges (including those assessed by a third party), shall be due and payable in accordance with WGA’s invoices and/or order forms or, if not stated on the invoice or order form, then 28 days from the date Products are provided or Services are rendered. Payment is due regardless of whether Services are documented by signature at the time Products are delivered or Services are rendered. WGA may have granted credit or certain pricing or other contract terms based on credit qualifications, customer practices, or payment means (e.g. automatic credit card payment). Should any such qualifications, practices or payment means change, then WGA reserves the right to change any corresponding pricing or contract terms. When WGA extends credit to a Customer, such Customer, upon signing up for the Products and Services, automatically authorizes WGA to file for a UCC-1 financing statement.
Past due accounts will be assessed a minimum $20 late fee per monthly billing cycle or, where Customer is purchasing the Products or Services for use in a business, a minimum finance charge of 18% annually, whichever is greater. WGA reserves the right to modify financial terms or terminate Services in the event of repeated past due balances, recurring deposit collection efforts or late payments by Customer. Customers who use the Products or Services for personal or household purposes must make payment to WGA via credit card or by cash or by check.
Deposits paid on WGA property (including bottles and equipment), may be applied to the unpaid portion of any debt incurred by Customer at WGA’s discretion. Refunds of deposits or credit balances upon termination of Services shall be returned by WGA after a complete analysis of Customer’s account, satisfaction of any balance due, complete return of all equipment and bottles, and evaluation for wear and tear. Bottles without a WGA label, of non-WGA brand, or bottles that are not proprietary to WGA are not acceptable for return or credit and deposits on these bottles will be forfeited. Bottle exchange fees are non-refundable and non-transferable and WGA reserves the right to accept bottles for return or disposition without liability. WGA reserves the right to apply deposits, at its discretion, including, but not limited to, outstanding balances first, late fees and finance charges.
If Customer disputes any portion of an invoice, Customer shall notify WGA in writing detailing the disputed amount and shall pay any undisputed portion within the normal terms. WGA reserves the right to charge a non-refundable $45 administrative fee for each failed payment transaction, including checks returned due to fund insufficiency (NSF), stopped payments, credit card and Automated Clearing House (ACH) merchant payment returns, or unjustified claims of unauthorized transactions.
Customer is responsible for payment of all costs of collection, including bank, attorney, collection, court and third party fees, and any other costs incurred as long as Customer’s debts to WGA are unpaid. Any notice of delinquency is sufficient notice to terminate the Agreement and/or any promotional pricing.
If Customer has accepted free Products or Services, special pricing, discounts or modified terms and conditions under a promotional arrangement plan or new Customer introductory offer and Services are terminated by either party in less than the specified term in months, Customer agrees to pay WGA a $75 early cancellation fee or the retail value of promotional Product or Service received, whichever is greater, which is in addition to any other applicable cancellation or termination fees.
WGA Product pricing and availability are subject to change on expiration of promotional periods. Past due balances will automatically terminate promotional pricing, discounts and special terms, and may result in suspension of service or termination of the Agreement by WGA and removal or repossession of WGA’s equipment.
Bottles should be stored under proper conditions and handled properly at all times, including protection from freezing, heat, sun exposure or other adverse weather conditions. Customer must inspect all water bottles upon delivery and notify WGA by the next business day of any leaks or other defects.
All returnable bottles must be returned to or made available for pick up by WGA within 28 days of termination of service. WGA reserves the right to schedule the pickup of bottles and related equipment at Customer’s location at WGA’s discretion and to charge a reasonable pickup fee.
Special fees for expedited, restricted, supplemental or rescheduled bottle and equipment pickup may apply. WGA reserves the right to evaluate bottles returned to ensure suitability or safety of use as a food container and meeting acceptable conditions.
WGA will provide the equipment described on the Order Form and will be provided at the rate per period and for a minimum term in months from the date of the Agreement as specified on the Order Form. If the term is not specified on the Order Form, then the equipment will have the following minimum standard terms:
- Bottled water coolers and coffee brewers – minimum standard term of 12 months, and thereafter shall automatically renew monthly. During any renewal term, the parties may cancel the term at any time upon 30 days’ written notice to the other party.
- Point of use filtration water coolers and water filtration systems – minimum standard term of 60 months, and thereafter shall automatically renew annually. During any renewal term, the parties may cancel the next renewal term with at least 60 days’ written notice prior to the end of the current renewal term.
Use of equipment may be subject to specific purchase minimums, plan terms, specific purpose of use or other minimums and requirements stated on the Order Form. If these conditions are not met, WGA reserves the right to downgrade Customer’s equipment, charge a reasonable fee for equipment, modify the equipment plan, pricing and availability, change standard pricing, or terminate the Agreement in its entirety and remove all equipment at the Customer’s expense. Equipment offered by WGA is subject to availability. WGA reserves the right to provide comparable, new or refurbished equipment without notification.
On early termination of the Agreement, WGA will assess a minimum cancellation fee of $75.00 per equipment unit, or the applicable fees for remaining rental, whichever is greater.
Equipment must be used only for its intended purpose. Customer will not attach any inline or interdependent equipment without the permission of WGA. Customer will provide adequate electrical outlets within 4 feet of units requiring electric service. Source water lines must be within 10 feet of equipment and suitable for connection or additional installation costs may apply.
Customer will not operate, modify, repair, or engage in any unauthorized activities with respect to WGA equipment that will cause excess wear, failure, breakdown, damage or voiding of any product warranty. Customer will provide access within normal business hours to allow WGA to perform all service, repair, maintenance and warranty work on all equipment, at Customer’s location, in order to keep equipment in proper working condition.
CUSTOMER IS RESPONSIBLE FOR ALL LOSS, THEFT, UNAUTHORIZED REMOVAL, DAMAGE AND EXCESS WEAR AND TEAR TO ALL EQUIPMENT PROVIDED BY WGA (INCLUDING DAMAGE FROM UNSUITABLE WATER SUPPLY), EXCEPT ONLY WHEN SUCH COSTS ARE MADE NECESSARY AS A DIRECT RESULT OF ACTIONS OR INACTIONS BY WGA. CUSTOMER MUST HAVE ADEQUATE INSURANCE TO COVER ALL SUCH RISKS AND WGA MAY REQUIRE PROOF OF SUCH INSURANCE.
Customer will return to WGA or make available for pickup by WGA all equipment in the same condition as when originally installed, except for normal wear and tear. WGA reserves the right, at its sole discretion, to charge a reasonable fee, up to the full original value of the equipment, to replace, refurbish or dispose of equipment subject to loss, theft, damage, or excess wear and tear.
Customer shall not move equipment from its originally installed location without written permission from WGA. WGA may charge a reasonable pickup charge if equipment is moved out of WGA’s normal service area. Failure to notify WGA of Customer’s intent to vacate its premises where the equipment is installed shall be considered a breach of the Agreement. Customer will reimburse WGA for any claims of landlords withholding the equipment or taking similar actions.
Within 10 days of any breach or termination of the Agreement, Customer shall provide WGA, or its agents, reasonable access to remove WGA’s equipment. All equipment must be returned to WGA or made available for pickup by WGA within 28 days of termination of the Agreement. WGA reserves the right to schedule the pickup of equipment at Customer’s location at its discretion. Special fees for expedited, restricted, supplemental or rescheduled bottle and equipment pickup may apply. On failure to return equipment or make appropriate arrangements for WGA pickup, WGA may charge Customer the retail price of the equipment and other taxes or other charges may apply.
WGA retains the right to remove any equipment for delinquency or at any other time WGA, in good faith, considers necessary to protect the equipment, Customer or WGA. WGA may hold Customer responsible for any costs incurred when removing or moving equipment.
All Products dispensed or operated will be purchased from WGA.
Source Water Quality
If WGA is supplying equipment such as coffee brewers or filtration systems that do not use water that WGA provides, then Customer will provide, free of charge to WGA, a water supply sourced from a potable municipal, tap or approved public water supply that meets federal, state and local water quality regulations. Any costs incurred to condition the source water are Customer’s responsibility.
If Customer’s source water quality is unsuitable for use with the equipment, Customer will notify WGA in writing or by electronic mail within 24 hours. Customer’s failure to give timely and proper notice of source water quality deficiencies or to correct them is a breach of the Agreement.
WGA reserves the right to test Customer’s source water at any time, without notice, for potability and suitability as determined by WGA. Upon reasonable request by Customer, WGA will provide water quality results to Customer.
ANY TEST OF WATER QUALITY PERFORMED BY WGA IS SOLELY FOR WGA’S BENEFIT OR CUSTOMER’S CONVENIENCE. WGA IS NOT A STATE-CERTIFIED WATER TESTING LABORATORY AND CANNOT OFFER ANY ASSURANCE AS TO THE QUALITY OF CUSTOMER’S WATER SUPPLY. If Customer wants its own water tested, then Customer must make its own arrangements.
WGA reserves the right to disconnect equipment connected to Customer source water lines at any termination point at its discretion and cost for any reasonable cause.
Control of Equipment and Premises and Indemnification
Customer shall be considered the operator of the equipment and in full control of the premises, including parts of the premises where WGA employees or contractors are performing Services. Customer will ensure that all necessary measures are taken for safe and secure working conditions during the performance of Services.
Customer agrees to indemnify, defend, and hold harmless WGA and WGA’s shareholders, employees, affiliates, members, directors, officers, agents and other representatives against all claims, demands, damages, suits, penalties, fines, liabilities, losses, costs and expenses, including attorneys’ fees and costs of suit, for injury or death to persons, loss or damage to property, and economic losses, including water damage, arising out of Customer’s use, storage, distribution and consumption of products, or operation or possession of equipment, including, but not limited to, receipt and use of Products and/or Services, bottles, water coolers, coffee brewers, inline water filtration equipment, equipment waterline connections and plumbing, and any other acts or omissions of Customer. This indemnification provision shall survive the termination of the Agreement and removal of all equipment.
Any rental or other fee paid under the Agreement is not a contribution towards purchase price of bottles or any sort of equipment. WGA remains the sole owner of all bottles and other equipment at all times.
The Agreement supersedes all previous agreements, including equipment exchange agreements, unless noted on the Order Form.
A fax, scan, copy or electronic version of any part of the Agreement shall have the same force and effect as a hand-signed paper copy and shall be a valid and binding.
Customer is solely responsible to arrange for any training that may be required under applicable safety laws and regulations and Customer’s own safety, security and other requirements. If Customer requires WGA employees or contractors to attend training, WGA will be paid the standard hourly rate and expense reimbursement for such training attended. Such training shall not create or expand any warranty or obligation of WGA and shall not serve to alter or limit any part of the Agreement.
WGA shall not be liable for delay or failure to perform under the Agreement due to any cause beyond its reasonable control, including, without limitation, act of God (such as, but not limited to, weather, fires, earthquakes, drought and floods); war, hostilities, mobilization, requisition, or embargo; rebellion, revolution, insurrection, civil war or military action; riot, commotion, strikes, slows-downs, lock outs or other labor disorder; acts or threats of terrorism; or acts or omissions by third parties or any third party’s equipment, supplies or products.
The Agreement is only assignable or transferable with WGA’s written approval. Customer shall not try to sell, lend, rent, give or deliver any of WGA’s bottles or equipment to any other person. Customer may not directly or indirectly transfer any of its rights or obligations under the Agreement without WGA’s written approval.
Limitations and Disclaimers
CUSTOMER UNDERSTANDS THAT WATER PROVIDED BY WGA MAY NOT CONTAIN FLUORIDE, CHLORINE OR OTHER ADDITIVES NORMALLY FOUND IN PUBLIC WATER AND MAY NOT HAVE BEEN TREATED IN A PUBLIC WATER SYSTEM. CUSTOMER ASSUMES ALL SUCH RISKS.
WGA IS NOT RESPONSIBLE FOR UNSAFE CONDITIONS ARISING AS A RESULT OF CUSTOMER’S MISUSE OR IMPROPER CLEANING OR MAINTENANCE OF SYSTEMS OR EQUIPMENT, OR ANY CONDITIONS EXISTING IN CUSTOMER’S FACILITY OR SYSTEM, INCLUDING INCOMPATIBILITY OF CUSTOMER’S WATER SOURCE, OR COFFEE, TEA, OR OTHER SUPPLIES OR INGREDIENTS ADDED TO THE WATER BY CUSTOMER OR BY THIRD PARTIES.
TO THE EXTENT PERMITTED BY LAW, THE BOTTLES AND ANY EQUIPMENT AND SERVICE ARE PROVIDED “AS-IS”, AND WGA DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY CLAIMS FOR DAMAGE OR LOSS, DIRECT, INDIRECT OR CONSEQUENTIAL, WHATEVER THE CAUSE THEREOF, INCLUDING LOST BUSINESS OR PROFITS, PROPERTY DAMAGE, OR BUSINESS INTERRUPTION, ARE EXPRESSLY EXCLUDED.
THE MANNER IN WHICH WGA’S PRODUCTS ARE USED AND THE PURPOSE TO WHICH THEY ARE PUT ARE BEYOND WGA’S CONTROL. THEREFORE, CUSTOMER MUST INDEPENDENTLY DETERMINE TO ITS SATISFACTION WHETHER THEY ARE SUITABLE FOR CUSTOMER’S INTENDED USES. UNLESS WGA OTHERWISE AGREES IN WRITING, ALL INFORMATION AND TECHNICAL ASSISTANCE FROM WGA IS GIVEN WITHOUT WARRANTY OR GUARANTEE AND IS SUBJECT TO CHANGE WITHOUT NOTICE. CUSTOMER ASSUMES AND HEREBY EXPRESSLY RELEASES WGA FROM ALL LIABILITY FOR PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND ECONOMIC LOSSES, IN TORT, CONTRACT OR OTHERWISE, INCURRED IN CONNECTION WITH THE USE OF WGA’S PRODUCTS OR SERVICES. ANY STATEMENT OR RECOMMENDATION NOT CONTAINED HEREIN IS UNAUTHORIZED AND SHALL NOT BIND WGA.
TO THE EXTENT WGA IS PROHIBITED UNDER ANY APPLICABLE LAW FROM DISCLAIMING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THE DURATION OF ALL SUCH IMPLIED WARRANTIES IS EXPRESSLY LIMITED TO THIRTY (30) DAYS OR, IF GREATER, THE MAXIMUM PERIOD REQUIRED BY APPLICABLE LAW.
CUSTOMER UNDERSTANDS THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THE AGREEMENT ARE MATERIAL INDUCEMENTS FOR WGA TO ENTER INTO THE AGREEMENT AT THE PRICES AND ON THE TERMS STATED, AND THAT WGA WOULD NOT BE WILLING TO PROVIDE THE SERVICES AT SUCH PRICES WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CERTAIN OTHER PROVISIONS, SO SOME OF THE LIMITATIONS, EXCLUSIONS OR OTHER TERMS IN THE AGREEMENT MAY NOT APPLY TO PARTICULAR CUSTOMERS.
UNDER NO CIRCUMSTANCE SHALL WGA BE LIABLE IN ANY DISPUTE OR OTHER MATTER RELATING TO ANY PRODUCT OR SERVICE PROVIDED BY WGA, WHETHER IN CONTRACT OR TORT, FOR ANY AMOUNT GREATER THAN THE ORIGINAL PRICE CUSTOMER PAID FOR THE PRODUCT OR SERVICES GIVING RISE TO THE CLAIM DURING THE MONTH PRECEDING THE CLAIM.
THE AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND ANY ACTION WILL BE RESOLVED IN THE COUNTY OF BERKS, PENNSYLVANIA IN A CASE TRIED SOLELY BY A JUDGE.
ALL PROCEEDINGS ARISING OUT OF OR RELATED TO THE AGREEMENT, THE PRODUCTS AND/OR THE SERVICES WILL BE CONDUCTED ON AN INDIVIDUAL, NOT A CLASS-WIDE BASIS. ANY PROCEEDING BETWEEN THE CUSTOMER AND WGA AND/OR ITS AFFILIATES, OFFICERS OR EMPLOYEES SHALL NOT BE CONSOLIDATED WITH ANY OTHER PROCEEDING BETWEEN WGA AND ANY OTHER THIRD PARTY.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT BY AGREEING TO THIS LIMITATION, CUSTOMER IS GIVING UP THE RIGHT TO LITIGATE (AS A PARTY OR CLASS MEMBER) ALL DISPUTES BEFORE A JUDGE OR JURY.