These are the terms and conditions of use for SmartLink which are agreed upon registering for an account. Downloadable link found at bottom.
SmartLinkTM Network Customer Agreement
This SmartLinkTM Service Agreement (“Agreement”) is between the HOMEOWNER, PROPERTY OWNER, RESIDENTIAL PROPERTY MANAGER, COMMERCIAL PROPERTY MANAGER, LANDSCAPING SERVICE PROVIDER, IRRIGATION SERVICE PROVIDER OTHER PERSON OR ENTITY accepting this Agreement as provided below (“Customer”) and Telsco Industries. Inc., d.b.a. Weathermatic, a Texas corporation, whose principal business address, and address for all legal notices, is 3301 W. Kingsley Road, Garland, Texas 75041 (“Weathermatic”).
1. Questions, Comments or Reporting of Service Problems
If the Customer has any questions or comments on this Agreement, or any questions or comments concerning any term, clause or condition in this Agreement, he should contact the Weathermatic help desk before accepting this Agreement. The Weathermatic help desk can be reached by telephone at 888-484-3776 or online at http://suppport.weathermatic.com or by email at email@example.com. For reporting service issues, service interruptions or other service related questions for the SmartLinkTM service, the Customer should direct all correspondences to help desk.
2. Acceptance of this Agreement
By signifying acceptance of this Agreement electronically, i.e., by clicking “Accept Agreement” or the equivalent when prompted or by logging in to this website or by logging in to any Weathermatic SmartLinkTM Irrigation Controller or to any Weathermatic SmartLinkTM service connection using the SmartLinkTM website (cumulatively referred to as the SmartLinkTM service), the Customer acknowledges being capable of negotiating customer agreements and having the authority to do so. The Customer acknowledges he has read, understood, accepts, and agrees to be bound by all terms and conditions of this Agreement. (The Customer may request a printed copy of this Agreement, for executing, by contacting Weathermatic in writing.) THE CUSTOMER FURTHER ACKNOWLEDGES THAT PRIOR TO ACCEPTING THIS AGREEMENT, THE CUSTOMER HAD THE OPPORTUNITY TO CONSULT WITH AN INDEPENDENT ATTORNEY OF THEIR OWN CHOOSING.
This Agreement is effective when accepted by the Customer and applies, upon its acceptance and as further provided below, to all transactions between the Customer and Weathermatic involving the past, present, or future activations/subscriptions to Telsco Industries, Inc. April 1, 2011 Weathermatic’s SmartLinkTM service and is reaffirmed by the Customer every time the Customer logs on to this and other SmartLinkTM websites, activates a Weathermatic SmartLinkTM service connection, communicates with or monitors an irrigation controller using the Weathermatic SmartLinkTM service, or otherwise uses the SmartLinkTM service.
This Agreement remains in effect until terminated in accordance with its terms. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCEPT IT
3. Term of the Agreement and Payments
Unless otherwise terminated as provided herein, this Agreement shall continue in effect on a month-to-month basis, for a period of at least one (1) month of service, for a subscription term of at least one year and will be reaffirmed each month by acceptance of the Agreement, logging on to the SmartLinkTM website or payment of the service subscription fee. For the purpose of payment, the term of the SmartLinkTM service subscription is annual, multi-year or monthly.
3301 W. Kingsley Road • Garland, TX 75041-2207 • Phone: 888-484-3776 • Fax: 972-271-5710 • www.weathermatic.com
Payment of the service subscription fee is due in advance of service and made payable to Weathermatic. For annual plans, the service commences on the date of activation and continues for period of the plan. Monthly plans commence on the first calendar day of a month and ends on the last calendar day of that month. For activation and termination of service not occurring on the first and last calendar days of the month, the monthly service subscription fee will be prorated. Payments not received by the first calendar day of a month will be deemed late and a late charge added to the monthly service subscription fee. Payments not received by the last calendar day of a month will result in the loss of the Customer’s access to the SmartLinkTM website and disconnection of the Customer’s SmartLinkTM service. Customer reconnection to the SmartLinkTM service and access to the SmartLinkTM website will be granted after the payment of all late fees, service charges and a reconnection fee. The Customer will be liable for any and all monthly service subscription fees while disconnected during the subscription term of the Customer’s agreement.
Weathermatic reserves the right to verify Customer’s payments prior to crediting any payment to the Customer’s account. Weathermatic reserves the right to change or update the service subscription structure or pricing without notice.
4. Limit of Liability
The liability of Weathermatic, including Telsco Industries, Inc., its subsidiary companies and its agents, under this Agreement shall not exceed $100.00 or the subscription fee rate for one (1) month service subscription fee, whichever is greater, for any and all injury, loss, damage or harm to the Customer resulting from or related to the SmartLinkTM service, the SmartLinkTM service connection or the use of the SmartLinkTM website occurring during the monthly service term for a subscription month, regardless of the type or number of events, claims or occurrences.
5. The SmartLinkTM Irrigation Controller Communication Service, Website
The SmartLinkTM service is a monthly, fee-based, interactive communication service that enables Weathermatic’s Customers to connect to and communicate with a single SmartLinkTM compatible Weathermatic irrigation controller that is equipped with a SmartLinkTM communication modem by accessing the SmartLinkTM website. Connecting to and communicating through each individual SmartLinkTM communication modem is covered by separate Agreements, to which the terms and conditions apply separately.
The Weathermatic SmartLinkTM service is accessible by the Customer from any Internet connected network using a wired or wireless device running compatible web browsers through the SmartLinkTM website. The Weathermatic SmartLinkTM service is not intended to compatible with every type of irrigation controller, nor does the SmartLinkTM service enable the Customer to monitor, control and/or activate every irrigation controller setting or status value.
From time-to-time, Weathermatic may modify the SmartLinkTM service, the SmartLinkTM website and/or the SmartLinkTM graphical user interface, including the capability for accessing new irrigation controller features or discontinuing support for accessing other irrigation controller features, with or without prior notice to the Customer and without the offer of additional irrigation controller features. Additionally, the SmartLinkTM service may restrict the Customer from accessing some irrigation controller features or SmartLinkTM service features or options not included with the base subscription tier of irrigation controller features. Those irrigation controller features may be accessible to the Customer for an additional fee.
6. No Guarantee
The SmartLinkTM service does not relieve the Customer of his responsibility for inspecting, monitoring and maintaining irrigation systems, property, grounds, surroundings, turf, sod, plants, bushes, trees and other foliage, nor does the SmartLinkTM service relieve the Customer of his responsibility for understanding and properly operating the SmartLinkTM service, the SmartLinkTM website or the SmartLinkTM connection nor does the SmartLinkTM service alleviate or lessen the standard of care due to the Customer’s personnel, agents, invitees, licensees and bystanders by the Customer.
Weathermatic does not guarantee or warrant that the SmartLinkTM service is compatible with the Customer’s programs, applications or hardware, nor does Weathermatic guarantee or warrant the Customer’s programs or data when used with the SmartLinkTM service or that the Customer’s programs or data will not be corrupted from or by use with the SmartLinkTM service.
Weathermatic does not guarantee or warrant that the SmartLinkTM service is secure or that the Customer’s data, including programming data, settings, logon identities, passwords, or that the Customer’s communication or content of the communication are secure or that the SmartLinkTM service or SmartLinkTM website cannot be hacked or intruded or accessed by unauthorized third parties, or that the SmartLinkTM service or SmartLinkTM website is free of any harmful software bugs, viruses, worms, Trojans, spyware, malware or other malicious code (malcode). Weathermatic does not guarantee or warrant that the Customer’s irrigation controller may not be reprogrammed, inadvertently or otherwise, using the SmartLinkTM service or the SmartLinkTM website.
Weathermatic does not guarantee or warrant that the SmartLinkTM service, the SmartLinkTM website or the SmartLinkTM connection will be accessible at any particular time or the communication to the Customer’s irrigation controller will be available at any particular time nor does Weathermatic guarantee or warrant that the SmartLinkTM service, the SmartLinkTM website or the SmartLinkTM service connection will be free from downtime.
Weathermatic does not guarantee or warrant that the use of the SmartLinkTM service will increase aesthetic beauty or enhance the appearance or value of the Customer’s turf, sod, plants, bushes, trees and other foliage, or the Customer’s landscape.
7. Insurance and Indemnification
The Customer acknowledges and agrees that its has been advised to, at its own expense, take out and maintain comprehensive liability insurance for losses in excess of the liability of Weathermatic, including property, products, services, operations, and contractual liability coverage that will protect the Customer from property damage to turf, sod, plants, bushes, trees and other foliage; buildings, structures and other objects; the cost of irrigation water, service interruptions, corrupted, missing or stolen data or programs, and injury or death to personnel, agents, invitees, licensees and bystanders in connection with this Agreement.
8. No Liability
Weathermatic will not be liable for any loss of the Customer’s hardware, data, programs, software or applications or for any corruption of the Customer’s data, programs, software or applications, that is associated with or the proximate cause of using the SmartLinkTM service.
Weathermatic will not be liable for any loss of the Customer’s ability to communicate with any irrigation controller, SmartLinkTM communications modem or any other device or website, nor will
3301 W. Kingsley Road • Garland, TX 75041-2207 • Phone: 888-484-3776 • Fax: 972-271-5710 • www.weathermatic.com
it be liable for downtime or losses that arise from downtime, that is associated with or the proximate cause of using the SmartLinkTM service.
Weathermatic will not be liable for any loss, cost or damage resulting from the Customer’s inability to log on to the SmartLinkTM service or the SmartLinkTM website due to lost, forgotten, misplaced, stolen, altered, changed, hacked, misused or abused Customer logon IDs and/or Customer passwords whether a result of any action or inaction by any person, including, but not limited to, the Customer, a current or former agent of the Customer or any other person, or due to Customer misuse or abuse of the SmartLinkTM service application, or due to lost, forgotten, misplaced or stolen application disks, or due to corruption of the SmartLinkTM service application, SmartLinkTM website, the Customer’s irrigation controller(s) or due to the unauthorized, inadvertent, improper, accidental, unintended, erroneous, negligent or malicious modification of the SmartLinkTM service application, the SmartLinkTM website, the SmartLinkTM graphical user interface,, any Customer data stored on the SmartLinkTM service application, the SmartLinkTM website, the SmartLinkTM graphical user interface, the SmartLinkTM connection or to any Customer software or hardware using the SmartLinkTM service, or the Customer’s irrigation controller(s), including, but not limited to, Customer irrigation controller programming values, controller programming data and values, valve actuation and valve deactivations, irrigation water schedules, watering durations and landscape, plant, location and atmospheric values by any person, including, but not limited to, the Customer, a current or former agent of the Customer or any other person. If the Customer suspects that an unauthorized person has gained access to the Customer logon IDs, or Customer passwords, or that other confidential information has been compromised, lost or stolen, the Customer must immediately contact the Weathermatic help desk by telephone at 888-484-3776 or by email at firstname.lastname@example.org.
Weathermatic will not be liable for any loss, cost or damage resulting from over watering or untimely watering, that is associated with or the proximate cause of using the SmartLinkTM service.
Weathermatic will not be liable for any loss or degradation of the Customer’s turf, sod, plants, bushes, trees, other foliage and enjoyment, nor will Weathermatic be liable for damages or loss of landscape, damage to irrigation controller, irrigation equipment, or for excess watering, damage from any action or inaction by any person, including, but not limited to, the Customer, a current or former agent of the Customer or any other person, this includes but is not limited to the, unauthorized, inadvertent, improper, accidental, unintended, erroneous, negligent, malicious, entry of data, reprogramming of controllers by any person, or any other consequence, that is associated with or the proximate cause of using the SmartLinkTM service.
Weathermatic will not be liable for security breaches to the SmartLinkTM service, the SmartLinkTM website or the SmartLinkTM connection or to any Customer software or hardware using the SmartLinkTM service, the SmartLinkTM website or the SmartLinkTM connection, that is associated with or the proximate cause of using the SmartLinkTM service.
9. No Warranties
WEATHERMATIC’S SMARTLINKTM SERVICE, WITHOUT LIMITATION, THE FUNCTIONALITY OF THE SMARTLINKTM SERVICE PLATFORM, THE SMARTLINKTM SERVICE APPLICATION, THE SMARTLINKTM SERVICE CONNECTION, THE SMARTLINKTM WEBSITE, AND OTHER SERVICES PROVIDED BY WEATHERMATIC HEREUNDER, ARE SERVICES AND NOT TANGIBLE GOODS, AND ARE THEREFORE PROVIDED STRICTLY AS-IS, WITHOUT WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR NON-OBSOLESCENCE.
10. Cause of Service Interruption
Weathermatic is not responsible for any service interruption of the SmartLinkTM service resulting from the Customer’s equipment including the Customer’s network, intranet, extranet, the Customer’s wired or wireless connection device, i.e., laptop, desktop, personal computer (PC), net device, tablet, mobile phone, cell phone, smart phone, any Customer software, application or browser, Weathermatic irrigation controller, Weathermatic SmartLinkTM modem, wires, cables or connections.
Weathermatic is not responsible for any service interruption of the SmartLinkTM service resulting from a third party service provider including cellular providers, wireless providers, Internet service providers, network service providers, intranet service providers and extranet service providers.
Weathermatic is not responsible for any service interruption of the SmartLinkTM service resulting from signal transmission quality or availability between the Customer’s equipment and Weathermatic equipment, including public switched telephone network (PSTN) service, mobile telephony service, cellular telephony service and wireless service. Furthermore, Weathermatic is not responsible for any service interruption of the SmartLinkTM service resulting from cell phone and/or wireless reception, dropped calls, narrow bandwidth, call quality and call duration.
Weathermatic is not responsible for any service interruption of the SmartLinkTM service resulting from the Customer’s inability to log on to the SmartLinkTM service or the SmartLinkTM website due to lost, forgotten, misplaced or stolen Customer logon IDs, lost, forgotten, misplaced or stolen Customer passwords, or due to Customer misuse or abuse of the SmartLinkTM service application, or due to corruption of the SmartLinkTM service application, SmartLinkTM website, or due to Customer input errors or when users cannot create a new account or due to the unauthorized modification of the SmartLinkTM service application, website or graphical user interface or attempting to modify the SmartLinkTM service application, website or graphical user interface.
11. Interruption of Service
Continuous interruption of the SmartLinkTM service, or of the SmartLinkTM website, will be prorated to the Customer’s next billing period, ONLY AFTER THE CUSTOMER NOTIFIES THE WEATHERMATIC HELP DESK OF THE INTERRUPTION (by telephone at 888-484-3776 or by email at email@example.com), at the following rate:
a. Continuous Service Interruption
From To Prorated Service Rate 0.0 hours 24 hours 0.0 day
24 hours 48 hours 1.0 day
48 hours 72 hours 2.0 days
72 hours 96 hours 3.0 days
96 hours 120 hours 4.0 days
120 Hours 144 hours 5.0 days 144 hours 168 hours 6.0 days 168 hours 192 hours 7.0 days over 192 hours one month service
The Customer acknowledges and agrees to notify the Weathermatic help desk (by telephone at 888-484-3776 or by email at firstname.lastname@example.org immediately in the event that some
3301 W. Kingsley Road • Garland, TX 75041-2207 • Phone: 888-484-3776 • Fax: 972-271-5710 • www.weathermatic.com
action of or by the Customer may degrade the SmartLinkTM service or the SmartLinkTM website in any way, or in the event of a suspected stolen, or stolen, logon identification or password, or in the event of a service interruption lasting longer than one (1) hour.
The Customer and Weathermatic agree that information such as the quantity, pricing, and specifications of the SmartLinkTM service, information concerning the SmartLinkTM service software, the SmartLinkTM website, the SmartLinkTM graphical user interface, the SmartLinkTM connection and other technology underlying the SmartLinkTM service, and information otherwise identified by Weathermatic as being proprietary or confidential (or that by its nature should reasonably be inferred as being proprietary or confidential) is competitively sensitive information not generally known to the public (“Confidential Information”). The Customer agrees to: (a) maintain Weathermatic’s Confidential Information in strict confidence, using at least the same degree of care (and in no event less than a reasonable degree of care) in maintaining its secrecy as it does with its own Confidential Information; and (b) use the Weathermatic’s Confidential Information consistently with the terms of this Agreement or to fulfill its obligations under this Agreement. Such duties will survive expiration or termination of this Agreement for a period of 3 years and, with respect to Weathermatic’s Confidential Information that is protected as a trade secret as defined under the Uniform Trade Secrets Act (UTSA), and until and unless Texas adopts the USTA, for so long as such Confidential Information remains a trade secret according to the UTSA.
13. Trademarks and Branding
SmartLinkTM is a trademark of Weathermatic and SmartLine® is a registered trademark of Weathermatic. This Agreement does not grant to the Customer, whether expressly, by implication, estoppel, or otherwise, the right or license to use Weathermatic’s trademarks, service marks, logos, or other designations.
14. Intellectual Property
Weathermatic owns and shall continue to own all title, rights, and other interests, including all intellectual property rights, in and to the SmartLinkTM service, SmartLinkTM communications modem, the SmartLinkTM website, the SmartLinkTM graphical user interface and the SmartLinkTM connection service, and all associated data, metadata, specifications, designs, documentation, software, and firmware. No other interest in or to Weathermatic’s intellectual property is granted by Weathermatic to the Customer whether expressly, by implication, estoppel, or otherwise. No work performed by Weathermatic hereunder shall be deemed a work for hire.
The Customer agrees that under no circumstances will he attempt to deconstruct, reverse engineer, replicate, duplicate or decompile the SmartLinkTM module, the SmartLinkTM service software, the SmartLinkTM website, the SmartLinkTM graphical user interface, the SmartLinkTM service connection or any elements thereof. The Customer agrees that any improvements made by the Customer to the SmartLinkTM service or any technology subject to this Agreement belong exclusively to Weathermatic, and if by operation of law any related intellectual property rights are not owned in their entirety by Weathermatic, then the Customer agrees to assign, and hereby assigns, to Weathermatic the ownership of such rights. The Customer agrees to provide any assistance required to perfect such protection and to take such further actions and execute and deliver such further agreements and other instruments as Weathermatic may reasonably request to give effect to this paragraph.
15. Ownership of Data, Code, Software
Weathermatic may collect, and shall own and retain all rights in, usage information from Weathermatic’s Customers and may aggregate it with information obtained from other sources
including, without limitation, Weathermatic’s distributors, installers and others of Weathermatic’s Customers. This information includes, but is not limited to the Customer’s overall use and usage patterns and trends of the SmartLinkTM service, the SmartLinkTM website and the SmartLinkTM graphical user interface, Customer irrigation controller programming values, controller programming trends and patterns, Customer irrigation schedules, watering durations and controller landscape settings.
Weathermatic reserves the right to study and evaluate this Customer information in perpetuity, for improving the SmartLinkTM service, the SmartLinkTM website and the SmartLinkTM graphical user interface or for the development of new products and services, and market applications for those products and services. Weathermatic may use this Customer information as discrete Customer data or aggregated Customer data.
Weathermatic retains all rights including, without limitation, any ownership rights it may have with respect to device codes and addresses, software, applications, websites, site design, graphical user interfaces and identifiers associated with SmartLinkTM service. Weathermatic reserves its right to allocate and control all such device codes and addresses, software, applications and identifiers. Any reverse engineering, decompiling, modifying or reassignment of any device codes/addresses, software, applications, websites, site design, graphical user interfaces and identifiers is expressly forbidden without Weathermatic’s express written consent.
Smartlink collects and stores, including Personally Identifiable Information (data that can be reasonably linked to a specific individual or household). By using this service, you agree to allow us to collect and process information as described below.
We collect seven types of Personally Identifiable Information (PII). This information is used to maximize water savings, provide users with the most relevant data and user experience, and to better allow us to understand how visitors navigate the website.
a. Purchase Information
If you purchase, renew or upgrade your Smartlink service from our website, we collect your name, billing and shipping address, credit card information and any other information necessary to complete the transaction.
b. Log-in Information
When you create a Smartlink account, you provide your email and create a password that we store so you can access Smartlink from a computer or mobile device.
c. Programming Information
When you set-up a controller and add landscape information including zones, plant types, slope, sprinkler type and region, we are using this information to optimize your program and water savings.
d. Local weather Information
If you add a weather station to your system, we are collecting on-site weather information to account for rain, freeze, wind and other factors that affect programming and water savings.
e. Controller information
When your system runs, we are collecting information about run times to display reports and optimize the program.
f. Usage Information
When a user is logged in, we record the IP address you visit our website from along with any adjustments you make to the controller through the interface. This data is stored along with your email address and history of controller settings on our servers.
g. Website Use Information
Like many websites, we use tools (including Google analytics) to collect information from visitors in order to better understand how they use our website (e.g., browser type, domains, page views). We use session cookies to keep you logged in while you use features of our web application; these disappear after you close your browser. We also use persistent cookies that stay in your browser and allow us to recognize you when you return to the site. Most Internet browsers automatically accept cookies, but you can change the settings to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you turn off cookies, parts of Smartlink.com may not work for you.
We do not rent or sell our customer lists. We may share your personally identifiable information with third parties for purposes of providing you with additional value added services. Except as described herein, we will only provide information collected on the website to a third party if required to do so by law, or in the good-faith belief that such action is necessary to comply with state and federal laws or respond to a court order, subpoena, or search warrant.
Smartlink takes security seriously. We use commercially standard methods to transmit your data securely including HTTPS, SSL, and 128bit encryption. The data is stored using Amazon’s RDS cloud service and is PCI-DSS Level 1 compliant.
The Smartlink website is hosted in the United States and is intended for United States and Canadian visitors. If you are accessing the site from the European Union or other regions with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your personal data to the United States and by providing your personal data you consent to that transfer.
Business Transitions: Upon the sale or transfer of the company and its assets, we will require a purchaser to treat our data under the privacy statement in place at the time of its collection.
17. Choice of Laws
This Agreement shall be governed and construed in accordance with the laws of the State of Texas, exclusive of its choice-of-law principles, with the exception of the protection of Weathermatic’s trade secrets wherein the Customer agrees that the Uniform Trade Secrets Act (UTSA) controls. The Customer and Weathermatic each hereby submits to the jurisdiction of the state and federal courts in the State of Texas and agrees that the venue of any action or proceeding may be in Dallas County, Texas and waives any claim that such venue is an inconvenient forum. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
18. Force Majeure
If either Weathermatic’s or the Customer’s performance of any of its obligations hereunder is delayed by strike, labor dispute, unavailability of materials, war, act of God, governmental action, flood, fire, explosion or other matters not within its reasonable control or by the inability of either to procure and obtain needed government consents or approvals, then the date for performance shall be extended by the time of such delay; provided, however, that, as to any and all such causes, the party so affected shall pursue with reasonable diligence the avoidance or removal of such delay if reasonably feasible.
This Agreement may be amended by Weathermatic, without notice to the Customer. Any notices to be provided herein to the Customer shall be deemed provided upon making the amended Agreement available to the Customer online at the SmartLinkTM website.
If you have any questions or comments on this Agreement, contact the SmartLinkTM help desk for a Weathermatic authorized representative before accepting it (by telephone at 888-484-3776 or by email at email@example.com). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCEPT IT