Zero Mass Terms & Conditions

SALES AGREEMENT TERMS AND CONDITIONS

Last revised: June 1, 2019

IMPORTANT NOTICE: THESE TERMS CONTAINS A BINDING ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE BINDING ARBITRATION PROVISION BELOW.

These Terms and Conditions (these “Terms”) are incorporated by reference into the SOURCE™ Sales Agreement (the “Sales Agreement”) amongst  you, as the customer; Zero Mass Water, Inc. (together with its affiliates, successors, and assigns, (“ZMW,” “we ”or “us”); and, if applicable, between ZMW’s independent distributor of the SOURCE™ Hydropanel (“Distributor”), (you, ZMW, and Distributor are each a “Party” and collectively referred to as the “Parties”).  The effective date of these Terms is the date you signed your Sales Agreement (the “Effective Date”).  ZMW or Distributor agrees to sell to you, and you agree to buy one or more SOURCE™ Hydropanels, an innovative technology that is free of infrastructure and provides clean, safe, high quality, renewable drinking water (each a  “SOURCE™ Hydropanel” and collectively the “SOURCE™ Hydropanel(s)”).  The SOURCE™ Hydropanel(s) will be installed at the address you listed in your Sales Agreement (the “Property” or your “Home”).  ZMW provides you with a Limited Warranty (the “Limited Warranty”). The Limited Warranty is included in these Terms as Exhibit A.  Among other terms and conditions, the Limited Warranty is conditioned upon the SOURCE™ Hydropanel being installed at the Property by an installer that is certified by ZMW to install SOURCE™ Hydropanels (an “Authorized Installer”).   A list of Authorized Installers is maintained and updated by ZMW and will be emailed to you at your request.  If you have any questions regarding your Sales Agreement or these Terms, please contact ZMW at 1(855)-7ZM-WATER or contact@zeromasswater.com.

ZMW reserves the right, at any time, to modify, alter, or update these Terms without prior notice. Modifications shall become effective immediately upon being posted to the ZMW website, which shall indicate the last date these Terms were so revised.

Price & Payment.   You shall purchase the Products from Seller at the prices on the date as set forth on the Sales Agreement.  ZMW and/or Distributor, in their sole discretion, may modify the prices set forth in its price list at any time but shall honor all Sales Agreements entered into prior to the effective date at the prices in effect as of the date of such Sales Agreement.  All prices for the SOURCE™ Hydropanel are exclusive of, and you are solely responsible for and shall pay, all sales, use, excise, or similar taxes, customers, tariffs, and duties applicable to the sale, storage, shipment, or use of the SOURCE™ Hydropanel.  The purchase price does not include the costs of installation, maintenance, or repair of the SOURCE™ Hydropanel.  You will be responsible for contacting an Authorized Installer to arrange for delivery and installation of the SOURCE™ Hydropanel.  You shall provide payment to ZMW or Distributor according to the payment terms provided by ZMW or Distributor at the time of purchase.  All payments to ZMW must be made in U.S. Dollars via wire transfer or automated clearinghouse (“ACH”), valid credit card, or other funds transfer method as specified in the payment terms.  ZMW or Distributor may charge interest at one percent (1%) per month on any late payment by you.

Right to Refund; Cancellation Period.  At any time on or prior to the third (3rd) business day following the Effective date (the “Cancellation Period”), you have the right to cancel the Sales Agreement for any reason and receive a full refund.  In order to exercise your right to cancel, you must notify ZMW (or Distributor, if applicable) in writing via email at the physical or electronic email address set forth in the Sales Agreement before the expiration of the Cancellation Period.  The Cancellation Period will be extended to the legally applicable period in any jurisdiction that requires a longer Cancellation Period.  If you refuse delivery, you will reimburse ZMW or Distributor for all costs incurred by ZMW prior to such refusal.

Shipment.  You shall be responsible for the cost of shipping your SOURCE Hydropanels to your Property or Home, which shipping cost shall be set forth in your Sales Agreement or in a separate quote from your Authorized Installer.  Title and risk of damage to or loss of the SOURCE™ Hydropanel(s) shall pass to you upon delivery by ZMW or Distributor to you or your Authorized Installer at your designated destination.  Any shipment dates provided by ZMW are acknowledged to be estimates only, and ZMW shall not be liable for shipping delays.

Intellectual Property.  You acknowledge and agree that the SOURCE™ Hydropanel is subject to patents and/or patents pending and the SOURCE™ Hydropanel, the SOURCE™ Hydropanel design and any literature pertaining thereto (including, without limitation, sales literature and manuals), and any and all intellectual property rights therein, any modifications or additions thereto and all related materials are proprietary to ZMW and/or its licensors.  You further acknowledge and agree that as between you and ZMW, ZMW owns all right, title and interest in and to any and all intellectual property rights in and to the SOURCE™ Hydropanel, including any derivative works, modifications, enhancement, or additions thereto, whether made by ZMW or any other person (collectively, the “SOURCE™ Hydropanel IP”). You acknowledge and agree that no rights in any SOURCE™ Hydropanel IP are assigned by ZMW pursuant to the Sales Agreement.  Nothing in the Sales Agreement shall be deemed to grant you any right or license to (a) reverse engineer, decompile, disassemble or otherwise copy the SOURCE™ Hydropanel or the SOURCE™ Hydropanel IP or any part thereof, or (b) use the SOURCE™ Hydropanel for purposes of: (i) benchmarking or competitive analysis of the SOURCE™ Hydropanel; (ii) developing, using or providing a competing product or service; or (iii) any other purpose that is to ZMW’s detriment or commercial disadvantage. In the event any inventions or improvements are made or contributed to the SOURCE™ Hydropanel by you, you agree that all such inventions, improvements, and all intellectual property rights underlying such inventions and improvements, shall be and are hereby irrevocably assigned to ZMW.  You agree to execute and deliver to ZMW all further documents and instruments, and to take any and all further acts as requested by Seller to give full force and effect to this provision, to perfect the foregoing assignment and to further evidence the intentions of the parties with respect thereto.

Use of Names and Marks.  You represent, warrant, and covenant that you shall not use, refer to, publish, copy, or otherwise designate, either orally or in writing, any logo, trademark, service mark, or trade name of ZMW (“Marks”).  Furthermore, you shall not: (a) use any mark that is confusingly similar to the Marks; (b) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the SOURCE™ Hydropanel or the Marks; (c) misappropriate any of the Marks; or (d) alter, obscure, or remove any Marks, copyright notice, or other proprietary rights notice on the SOURCE™ Hydropanel, documentation or other materials provided by ZMW.

Data Collection.  You understand and agree that ZMW shall collect data and information regarding the performance of the SOURCE™ Hydropanel, on a continuous basis, through a wireless transmission system SOURCE within the SOURCE™ Hydropanel, which will include the geo-location of the SOURCE™ Hydropanel in a manner consistent with local laws and regulations.  Such data shall be considered SOURCE™ Hydropanel IP hereunder.  ZMW shall be free to utilize such data without restriction.

YOUR OBLIGATIONS.

SOURCE™ Hydropanel(s), Home and/or Property Maintenance.  You agree to: (1) only have the SOURCE™ Hydropanel shipped , stored, delivered and installed by an Authorized Installer, unless otherwise arranged by ZMW; (2) work with an Authorized Installer to confirm the suitability of the Property or your Home (including, without limitation, the roof, if applicable) for the construction, installation and operation of the SOURCE™ Hydropanel; (3) work with an Authorized Installer to identify, apply for and receive all necessary zoning, land use and building permits for the construction, installation and operation of the SOURCE™ Hydropanel; (4) if your home is governed by a home owner’s association or similar community organization, obtain all approvals and authorizations for the SOURCE™ Hydropanel required by that organization and advise us of any requirements of that organization that will otherwise impact the SOURCE™ Hydropanel, its installation or operation; (5) only have the SOURCE™ Hydropanel repaired pursuant to the Limited Warranty and reasonably cooperate when repairs are being made; be responsible for any conditions at your Home that affect the installation (e.g., blocking access to the roof, or removing a tree that is in the way, prior work you have done on your home that was not permitted); (6) not remove any markings or identification tags on the SOURCE™ Hydropanel and permit ZMW, after we give you reasonable notice, to inspect the SOURCE™ Hydropanel for proper operation as we reasonably determine necessary; (7) not do anything, permit or allow to exist any condition or circumstance that would cause the SOURCE™ Hydropanel not to operate as intended at your Home or the Property; and (8)  notify ZMW if you think the SOURCE™ Hydropanel is damaged or appears unsafe, or if the SOURCE™ Hydropanel is stolen.

SOURCE™ Hydropanel Repair.   ZMW agrees to repair, or partner with an Authorized Installer to repair, the SOURCE™ Hydropanel pursuant to the Limited Warranty and reasonably cooperate with you when scheduling repairs.

Property or Home Renovations and Repairs.  If you want to make any repairs or improvements to your Home or the Property that could interfere with the SOURCE™ Hydropanel (such as repairing the roof where the SOURCE™ Hydropanel is located), you may only remove and replace the SOURCE™ Hydropanel pursuant to the conditions in the Limited Warranty.

No Alterations.  You agree that you will not make any modifications, improvements, revisions or additions to the SOURCE™ Hydropanel or take any other action that could void the Limited Warranty on the SOURCE™ Hydropanel without ZMW’s prior written consent.

Installation; Installation Guide and SOURCE™ Hydropanel Instructions.  You shall be solely responsible for the security, placement, maintenance, cost, and operation of the SOURCE™ Hydropanel in accordance with the Installation Guide provided to your Authorized Installer, the User Manual provided to you with the SOURCE™ Hydropanel, any SOURCE™ Hydropanel warnings, and other related documentation provided by ZMW (collectively, the “Instructions”), which may be updated from time to time.  Without limiting the generality of the foregoing, it is your sole responsibility to (a) engage an Authorized Installer to install the SOURCE™ Hydropanel in accordance with all the Instructions (b) obtain, document and pay for any rights or permits which may be needed to install, operate and/or maintain the SOURCE™ Hydropanel, (c) obtain the equipment or SOURCE™ Hydropanels necessary to operate the SOURCE™ Hydropanel and (d) operate the SOURCE™ Hydropanel pursuant to the Instructions.  Prior to installation, you shall engage an Authorized Installer for the SOURCE™ Hydropanel.  If you do not engage an Authorized Installer to install or repair the SOURCE™ Hydropanel and you do not comply with all Instructions, you waive all warranties and claims under this Agreement, and the Limited Warranty attached as Exhibit A shall be void.

Limited Warranty.  You understand that the SOURCE™ Hydropanel is warranted solely under the Limited Warranty attached as Exhibit A, and that there are no other representations or warranties, express or implied, as to the merchantability, fitness for any purpose, condition, design, capacity, suitability or performance of the SOURCE™ Hydropanel or its installation.  Without limiting the foregoing, ZMW makes no warranty with respect to your roof or any roof penetrations undertaken to install the SOURCE™ Hydropanel (including whether such penetrations are watertight).  You and your Authorized Installer are exclusively responsible for the installation of the SOURCE™ Hydropanel, including all roof penetrations and whether the roof has the necessary structural integrity to support the weight and installation of the SOURCE™ Hydropanel.

General Disclaimer; No Performance Guarantee for Water Output or Water Quality.  Except as expressly provided in these Terms, ZMW hereby disclaims and you hereby waive all representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any warranty of merchantability or fitness for a particular purpose for the SOURCE™ Hydropanel.  Without limiting the generality of the foregoing, ZMW makes no performance guarantee related to either (i) water output from the SOURCE™ Hydropanel or (ii) water quality from the SOURCE™ Hydropanel including, without limitation, with respect to water hardness, water taste, and water purity.  For example, in addition to the minerals that the SOURCE™ Hydropanel adds intentionally to enhance taste (e.g., calcium and magnesium), water produced by the SOURCE™ Hydropanel may contain trace yet safe amounts of certain substances, including chemicals, microbes, dissolved solids or sediments. In addition, the SOURCE™ Hydropanel’s proprietary sterilization process that is designed to maintain the safety of the water stored within the SOURCE™ Hydropanel is subject to proper installation, maintenance and the Limited Warranty. Distributor shall not make any representations or warranties to any customer concerning the SOURCE™ Hydropanel or the installation of the SOURCE™ Hydropanel that are inconsistent with the Sale Agreement (including these Terms and the Limited Warranty).

Limitation on Damages.  ZMW’s liability to you under this Agreement shall be limited to direct, actual damages only.  You agree that in no event shall either Party be liable to the other for consequential, incidental, punitive, exemplary, special or indirect damages.  ZMW’s liability to you shall not exceed an amount equal to the purchase price as set forth in the Sales Agreement for the SOURCE™ Hydropanel(s).  Without limiting the foregoing, damages to your home, belongings or property resulting from the installation of the SOURCE™ Hydropanel are not the responsibility of ZMW.  The foregoing limitation shall not apply to liability arising from death or personal injury to persons in any jurisdiction where such limitation is prohibited by applicable law.

THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS OR WARRANTIES, AND LIMITATION OF REMEDIES SET FORTH IN THESE TERMS SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE SALES AGREEMENT.

Indemnification.  To the fullest extent permitted by law, you shall indemnify, defend, protect, save and hold harmless ZMW, its employees, officers, directors, agents, successors and assigns from any and all third party claims, actions, costs, expenses (including reasonable attorneys’ fees and expenses), damages, liabilities, penalties, losses, obligations, injuries, demands and liens of any kind or nature arising out of, connected with, relating to or resulting from your negligence, willful misconduct, or use of the SOURCE™ Hydropanel inconsistent with the terms of the Sales Agreement; or a material breach or the Sales Agreement; provided, however, that nothing herein shall require you to indemnify ZMW for its own negligence or willful misconduct. The provisions of this paragraph shall survive termination or expiration of the Sales Agreement.

 

Privacy/Publicity.  You grant ZMW the right to publicly use, display, share, and advertise the photographic images, project details related to the SOURCE™ Hydropanel, price and any other non-personally identifying information of your project related to the SOURCE™ Hydropanel. ZMW shall not knowingly release any personally identifiable information about you or any data associating you with the project location. You may opt-out of these publicity rights by giving us written notice and mailing it to: contact@zeromasswater.com], Attention: Legal Department.

BINDING ARBITRATION

Last Update to Arbitration Provision:  April 29, 2019

PLEASE READ THIS SECTION CAREFULLY—IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

This Binding Arbitration provision governs all Disputes between you and ZMW. The term “Disputes” is to be given the broadest possible meaning that will be enforced and means any dispute, claim, or controversy of any kind between you and ZMW or any of its affiliates that arise out of or in any way relate to (1) any product (including the SOURCE™ Hydropanel) or service provided by or purchased from ZMW and/or Distributor; (2) this Agreement, including the validity, enforceability or scope of this Binding Arbitration provision (with the exception of the Class Action Waiver clause below), whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term “Disputes” includes claims that arose or accrued before you assented to this Agreement. If you have a Dispute with ZMW that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and ZMW agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Binding Arbitration provision, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

Exclusions from Arbitration.  YOU AND ZMW AGREE THAT THE ONLY DISPUTES NOT COVERED BY THIS PROVISION ARE (1) CLAIMS REGARDING THE INFRINGEMENT, PROTECTION OR VALIDITY OF ZMW’S TRADE SECRETS, COPYRIGHT, TRADEMARK OR PATENT RIGHTS AND (2) CLAIMS YOU CHOOSE TO PURSUE IN SMALL CLAIMS COURT WHERE JURISDICTION AND VENUE OVER ZMW AND YOU OTHERWISE QUALIFIES FOR SUCH SMALL CLAIMS COURT AND WHERE YOUR REQUEST DOES NOT INCLUDE A REQUEST FOR ANY TYPE OF EQUITABLE RELIEF.

Right to Opt-Out of Binding Arbitration and Class Action Waiver Within 30 Days. You have the right to opt-out and not be bound by this arbitration provision by sending written notice of your decision to opt-out to ZMW at 6500 E. McDowell Rd., Scottsdale, AZ 85257. The written notice must be postmarked within thirty (30) days of the later of the date noted in the “Last Update to Arbitration Provision” or the Effective Date of your Sales Agreement.  Your written notification must include: (1) your name, (2) your physical postal address, and (3) a clear statement that you do not wish to resolve disputes with ZMW through arbitration. Otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this provision. If you opt-out of this arbitration provision, ZMW also will not be bound by it. If you do not affirmatively elect to opt out as described above, your execution of the Sales Agreement will be deemed to be your irrevocable acceptance of this Binding Arbitration provision and any changes/updates to it.

Notice of Dispute. IF YOU HAVE A DISPUTE WITH ZMW OR ANY OF ITS AFFILIATES, YOU MUST FIRST SEND WRITTEN NOTICE OF THE NATURE OF THE DISPUTE TO CONTACT@ZEROMASSWATER.COM TO GIVE ZMW OR ITS APPLICABLE AFFILIATE THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than sixty (60) days after you provide notice of the Dispute. If ZMW or its applicable affiliate does not resolve your Dispute within sixty (60) days from receipt of written notice of the Dispute, you or ZMW (or its applicable affiliate) may pursue your claim in arbitration pursuant to the terms in this provision.

Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY—IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS.  Any disputes, claims or controversies, whether in arbitration or court, will be conducted only on an individual basis and not on behalf of, or as part of, any purported class, consolidated, representative or private attorney general proceeding. You further agree that you shall not participate in any class, consolidated, representative or private attorney general proceeding (existing or future) brought by any third party involving a Dispute. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated. The terms of this provision will be binding on you, your heirs, successors, and assigns.

Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or ZMW (or any of its affiliates) elect(s) to resolve your Dispute through arbitration, the party initiating the arbitration proceeding must initiate it with JAMS, http://www.jamsadr.com. The terms of this provision govern in the event they conflict with the relevant JAMS rules described below.

Arbitration Procedures. Because the sale of SOURCE Hydropanels involve interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. The arbitration shall be conducted by a single arbitrator. Except as otherwise provided in this Section, the arbitration shall be governed by the rules set forth in this Agreement and (1) for claims of less than $75,000, the arbitration shall be governed by the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated; and (2) for claims over $75,000, the arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (JAMS rules are available at http://www.jamsadr.com/ or by calling JAMS at 1-800-352-5267).

ZMW shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in connection with the arbitration including, but not limited to attorney’s fees and expert witness costs unless ZMW is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the JAMS Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on ZMW and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees and expert witness costs. ZMW and you understand that, absent this mandatory arbitration provision, ZMW and you would have the right to sue in court and have a jury trial. ZMW and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated.

Confidentiality of Arbitration Proceedings. Arbitration proceedings conducted pursuant to this provision shall be strictly confidential. The fact that an arbitration exists or is proceeding, the nature of the Dispute, all documents exchanged in connection with the arbitration, all testimony (including transcripts of testimony, if any) that is given in the arbitration proceeding, and any arbitration award shall remain confidential. The only exceptions to this confidentiality provision are disclosures reasonably necessary to confirm or vacate an arbitration award, a judicial challenge to an arbitration award or its enforcement, or disclosure that is required by operation of law or court order; provided, however, that this Paragraph shall not prevent the disclosure of such information (1) as may be required to your legal and financial advisors and independent accountants; (2) as may be required to ZMW’s (a) legal, financial and other professional advisors, regulators, rating agencies, independent accountants, analysts, agents, and/or directors, (b) shareholders and/or affiliates and their respective officers, directors and legal, financial and other professional advisors, and/or (c) existing or potential insurers or reinsurers, existing or potential investors, existing or potential lenders, or existing or potential purchasers; and/or (3) as otherwise required to comply with any applicable law or regulation.

Location of Arbitration. You or ZMW (or its applicable affiliate) may initiate arbitration in either Maricopa County, Arizona or the country in which you reside or have your principal office. In the event that you select the country in which you reside or have your principal office, ZMW may transfer the arbitration to Maricopa County, Arizona in the event that it agrees to pay any additional fees or costs you incur as a result of the change in the arbitration location as determined by the arbitrator.

Severability. If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that specific clause will be severed from this provision, and the remainder of this provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and ZMW each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.

Continuation.  This Binding Arbitration provision shall survive any termination of this Agreement or the provision of any Service to you.

GOVERNING LAW AND JURISDICTION

THE PARTIES AGREE THAT THE LAWS OF THE STATE OF ARIZONA, USA, WITHOUT REGARD TO ITS CONFLICT OF LAW RULES, GOVERN THIS AGREEMENT AND ANY DISPUTES BETWEEN YOU AND ZMW. ANY DISPUTE NOT SUBJECT TO ARBITRATION WILL BE LITIGATED exclusively BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN EITHER THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA OR IN the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA.

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Sales Agreement.

Notices.  All notices under this Agreement shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or certified or registered mail, return receipt requested, to Customer and ZMW at the applicable addresses set forth on the Sales Agreement.

Miscellaneous.  The Sales Agreement (a) shall be binding upon and shall inure to the benefit of the parties and their heirs, personal representatives and permitted successors and assigns, (b) together contains the entire agreement of the parties regarding the subject matter hereof, and  If any portion of the Sales Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. You shall not assign your rights or delegate your obligations under the Sales Agreement without the prior written consent of ZMW.  The Sales Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  No amendment to this Agreement shall be valid unless such amendment is made in writing and is signed by the authorized representative of the parties. Each party agrees not to export, directly or indirectly, any data acquired from the other party or any SOURCE™ Hydropanel utilizing such data to countries outside of the United States of America, which export may be in violation of the United States export laws or regulations or the laws and regulations of any other applicable jurisdiction.

 

 

 

 

EXHIBIT A

CURRENT FORM OF LIMITED WARRANTY

 

Subject to the limitations set forth herein, ZMW warrants to you that during the Warranty Period (as defined below) the Source™ Hydropanel described in your Sales Agreement will be free from defects in material and workmanship under normal and intended use consistent with the Instructions.  In the event of a warranty claim hereunder, ZMW will use commercially reasonable efforts to ship the necessary replacement parts for installation by an Authorized Service Representative at ZMW’s expense.

 

This limited warranty shall automatically expire one (1) year following the date of the completion of the installation of the Source™ Hydropanel by an Authorized Service Representative (the “Warranty Period”).  In addition, the occurrence of any of the following events shall immediately void this limited warranty: (a) your sale, assignment, transfer or other disposition of the Source™ Hydropanel (c) any modification or alteration of the Source™ Hydropanel other than by ZMW or an Authorized Service Representative, (d) any operation or use of the Source™ Hydropanel not in accordance with the Instructions; (e) any installation, maintenance or repair not performed (i) by ZMW or Authorized Installers or (ii) in accordance with the Instructions; or (f) where the Source™ Hydropanel has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage or handling, abnormal physical stress, abnormal environment conditions, or use contrary to any instructions from ZMW.

 

ZMW’s sole obligation, and your sole remedy, under the warranties set forth above shall be the repair of or, at ZMW’s sole option, the replacement of the Source™ Hydropanel or parts thereof that may be determined by ZMW to be defective, provided that you notified ZMW in writing of such defects within the Warranty Period.  You shall pay all freight, insurance, taxes, and other costs incurred for the return of the Source™ Hydropanel, or applicable parts of the Source™ Hydropanel, to ZMW’s plant (or other place designated by ZMW) for repair or replacement.  In the event that ZMW determines, in its reasonable judgment, that the Source™ Hydropanel was not defective when returned or were not otherwise covered by the warranty contained herein, you shall pay all such costs for the return shipment of the Source™ Hydropanel back to you or to the designated shipping point.

 

THE WARRANTIES PROVIDED IN THIS AGREEMENT WITH RESPECT TO THE SOURCE™  PANEL ARE IN LIEU OF, AND ZMW HEREBY DISCLAIMS, ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.  THE REMEDIES SET FORTH ABOVE CONSTITUTE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND THE SOLE AND EXCLUSIVE OBLIGATION OF ZMW, FOR BREACH OF THE WARRANTIES SET FORTH ABOVE.