- POWDER WATTS CUSTOMER SERVICE CONTACT INFORMATION
Powder Watts is delighted to answer any questions that you may have (including questions regarding billing, installation, equipment and service) and to provide you with technical and other customer support. You may contact us as follows:
Telephone Number: (435) 565-1530
Customer Service E-mail Address: email@example.com
Customer Service Mailing Address:
Powder Watts LLC
2570 Rasmussen Road
Park City, UT 84098
- SCOPE OF THIS AGREEMENT
For purposes of any agreement(s) related to your receipt of Services (as defined below) from Powder Watts (each, a “Customer Agreement” or “Agreement”), “you” and “your” refer to you, the Powder Watts subscriber; and (ii) “Powder Watts,” “we,” “us” and “our” refer to Powder Watts, LLC, a Utah limited liability company.
THIS AGREEMENT, TOGETHER WITH ANY RELATED ORDER FORM (TOGETHER, “CUSTOMER AGREEMENT”), SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH POWDER WATTS WILL PROVIDE SERVICES TO YOU (THE “TERMS”). THIS AGREEMENT IS EFFECTIVE UNTIL WE CHANGE IT. YOU ACKNOWLEDGE AND AGREE THAT WE MAY CHANGE ALL OR ANY PORTION OF THIS AGREEMENT AT ANY TIME AND FROM TIME TO TIME UPON NOTICE TO YOU (INCLUDING, WITHOUT LIMITATION, BY PUBLISHING A CHANGED AGREEMENT TO POWDERWATTS.COM/LEGAL).
- YOUR ACCEPTANCE OF THIS AGREEMENT
IN THE EVENT THAT YOU ARE A NEW POWDER WATTS CUSTOMER, THEN YOUR ACTIVATION OF A POWDER WATTS ACCOUNT SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT.
IN THE EVENT THAT YOU ARE AN EXISTING POWDER WATTS CUSTOMER, THEN YOUR CONTINUED RECEIPT OR USE OF SERVICES FOLLOWING A CHANGE TO THIS AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGED AGREEMENT.
SUBJECT TO CERTAIN EXCEPTIONS SET FORTH IN THIS AGREEMENT, THIS AGREEMENT REQUIRES THE USE OF MANDATORY AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES (AS THAT TERM IS DEFINED IN SECTION 10), RATHER THAN, AMONG OTHER THINGS, JURY TRIALS OR CLASS ACTIONS (SEE SECTION 10).
- DEFINITIONS AND SERVICES
- Authorized Installer Defined. “Authorized Installer” means the authorized or certified installer who installs your Powder Watts Equipment and initiates your Services. Currently, all Equipment must be installed by an Authorized Installer, who is the only party authorized to work with you to activate your account to obtain the Services.
- Equipment Defined. “Equipment” means the Powder Watts camera system and Switch and associated electronic and physical equipment you have purchased from Powder Watts or a Powder Watts Authorized Distributor or Powder Watts Authorized Reseller or Installer. The terms of purchase related to your purchase of the Equipment are covered by your separate agreement regarding the purchase of the Equipment.
- Powder Watts Share Defined. “Powder Watts Share” means a percentage of your Energy Cost Savings that is paid to Powder Watts and which constitutes its Service Fees, as described further in Section 5(A) below. The current Powder Watts Share is identified on your Order Form and in the absence of such definition or such order form, shall be 25% of your Energy Cost Savings.
- Services Defined. “Services” means any and all video monitoring, data and other services associated with monitoring heat tape operation and the condition of snow and/or ice dams on your roof using the Equipment and all other services that are available now or in the future from Powder Watts (whether subscription or otherwise).
- Switch Defined. “Switch” means each individual Powder Watts Equipment system that is designed to manage one area or strand of heat tape and includes a camera and other hardware. Equipment may include one or more Switches.
- Non-Commercial Use Only. The Services are provided to you solely for use on a personal residence that you own or lease, which may include a residential home, townhome, twin home, duplex, triplex or individual residential condominium unit, even if rented out to tenants on a short or long-term basis. You agree that if you wish to obtain or use Services for use on commercial premises, or if you convert your personal residence to commercial premises, you must request and sign a separate Commercial Customer Agreement. For purposes of this Agreement, “commercial premises” are premises from which you or a third party operates an active business or trade but does not include premises used for short- or long-term residential rentals that are not used for an active business or trade. In the event that you use the Services on commercial premises in connection with this Agreement, then, without limitation to any of our rights at law, in equity, under contract (including, without limitation, this Agreement and your applicable Customer Agreement) or otherwise (all of which are hereby expressly reserved): (1) we may disconnect your Services without notice at any time; and (2) in addition to all other applicable prices, fees and charges, you agree to pay us the difference between the price actually paid for the Services and the full, non-discounted applicable price that Powder Watts charges for the Services for commercial premises, from the date you commenced using the Services on commercial premises.
- Changes in Services, Features and Functionalities Offered. Unless otherwise prohibited by law, we have the right to, without notice at any time and from time to time (including, without limitation, during any term commitment to which you have agreed), add, delete, rearrange, alter, change and/or eliminate services offered including software, applications, features and/or functionalities. You further acknowledge and agree that you are not entitled to any credits, refunds, price reductions or any other form of compensation because of any such addition, deletion, rearrangement, alteration, change and/or elimination.
- Term of Agreement. Your Customer Agreement may contain reference to a period of time, or term. If there is such a reference, then you may not terminate this Agreement prior to the expiration of such term without paying an Early Termination Fee, as referenced in Section 5(I) below. If there is no such reference, then the term of this Agreement is for one (1) year and upon expiration, the term renews for automatic successive periods of one (1) year each unless either party gives written notice of termination at least ninety (90) days prior to the expiration date of the then current term, pursuant to the notice provisions of this Agreement.
- ENERGY SAVINGS; BILLING POLICIES; PAYMENTS FOR SERVICES; FEES
- Energy Cost Savings. Powder Watts charges are based on a share of the estimated energy savings you experience by installing and using the Services and as otherwise calculated pursuant to this Agreement (the “Energy Cost Savings”). The Energy Cost Savings is the estimated difference between what you pay following installation of the Equipment and initiation of the Services vs. what you would have paid in the absence of installing the Equipment and using the Services, as calculated and estimated by Powder Watts by accessing your historical electrical bills and current bills and comparing those as well as considering other available data. Powder Watts may include in your billing statement explanatory information to explain how it calculated your Service Fees or provide samples of Energy Cost Savings calculations on its website. All such samples are merely examples and do not constitute any promise or commitment of the actual Energy Cost Savings you may experience, which is dependent on a variety of factors. In calculating your estimated Energy Cost Savings, Powder Watts may also take into account other data, such as temperature and snow fall levels, to calculate the energy savings you achieve by using the Powder Watts Services. Your fees for using the Services are calculated as the Powder Watts Share of your estimated Energy Cost Savings, as calculated and estimated by Powder Watts based on the information available to it. This amount, plus any applicable taxes and government or utility charges, as well as any applicable Early Termination Fee, Activation Fee, Renewal Fee or other fees or charges applicable, constitutes your “Service Fees.” The Powder Watts Share is currently 25% of your Energy Cost Savings but is otherwise a fixed percentage identified in your Order Form and may only be changed by Powder Watts by written notice to you of any change to the Powder Watts Share percentage in connection with and prior to the date of any annual Agreement renewal. If you do not agree with any such update to the Powder Watt Share, you can decline to renew the term of your Agreement. Note that Powder Watts charges your Service Fees to your credit card on a monthly basis, in arrears, following its calculation of your Energy Cost Savings.
- Your Authorization for Credit Card Charges and Credits. By creating a Powder Watts account, you provide your electronic signature to this Agreement and you authorize Powder Watts to electronically debit and credit your Debit Card or Credit Card (“Credit Card”) in connection with your use of the Services and, if applicable, to correct erroneous debits and credits. This authorization extends for the purposes of making automated charges, debits and credits on your behalf to charge your Service Fees. You acknowledge that the electronic authorization contained in this section represents your prior written authorization for any automated Credit Card charges as provided in this section, and will remain in full force and effect until you notify Powder Watts that you wish to revoke this debit or Credit Card authorization by contacting us via the “Contact Support” link in the chat section of the App or emailing us at firstname.lastname@example.org. If you do not wish to continue to benefit from the Services, you can terminate your Powder Watts account by contacting us. If you do this, you authorize us to make a final debit or charge that covers Service Fees through the date of termination plus any applicable Early Termination Fee. If that date does not include a full month, then we may estimate the Service Fees based on the part of the month that is prior to the termination date. If you terminate your Powder Watts account, Powder Watts will terminate the Services and the Equipment will no longer function automatically to provide you with any Energy Cost Savings and will only be operable via the use of manual on/off switches located on the Equipment. By agreeing to this Agreement, you authorize Powder Watts to electronically charge your Credit Card as follows:
- Amount of Charges: As determined by Powder Watts, for the amount of all Service Fees, including any Activation Fee or Early Termination Fee.
- Frequency of Automated Charges: on a monthly basis as part of your Energy Saving plan.
- Cancellation and Change: You may cancel any applicable Credit Card authorization at any time but if you wish to continue the Services, you must provide an alternative Credit Card authorization. If you do wish to cancel or change, we must be notified at least three (3) business days before the charge is scheduled to occur, to prevent the upcoming transaction from processing, and be provided with an alternative payment method. Powder Watts reserves the right to cancel or suspend transactions due to fraud or compliance related concerns.
You agree to cooperate with us in correcting errors that may occur in our billings or as part of the Services we provide. If you receive funds or a credit in an amount greater than what you are entitled to receive under the Services and this Agreement, then you agree to immediately return and pay the excess amount to us.
You agree that we and our agents may reverse, withdraw or cancel any debit, transaction or item that provided you with funds in error. You agree that an error occurred if we or our agents send any funds to you after we receive evidence indicating that you defrauded us or provided us or our agents with false information.
You agree that we may initiate a new charge to your Credit Card in an amount equal to such overpayment plus the amount of expenses we incurred in recovering such overpayment, including the amount of your obligations, if any, under the “Indemnity” provision below. In addition to any of your other representations and warranties in these Terms, you represent that: (i) your browser is equipped with at least 128-bit security encryption; (ii) you are capable of printing, storing or otherwise saving a copy of this electronic authorization for your records; (iii) the Credit Card transactions you hereby authorize comply with applicable law; and (iv) your email address on record with us is yours and that email address is accurate and up-to-date.
In case of errors or questions about your electronic transfers or payments, email us at email@example.com as soon as possible, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 90 days after we sent the FIRST statement on which the problem or error appeared.
- Tell us your name and Powder Watts-associated email address.
- Describe the error or the transfer you are unsure about and explain as clearly as you can why you believe it is an error, or why you need more information.
- Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days. We will normally determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
- Payment of Service Fees. You agree to pay all Service Fees and/or charges billed for the Services, as well as all taxes that are now or in the future assessed in connection with any Services that you receive from us. You acknowledge and agree that such Service Fees and/or charges may include, without limitation, reimbursement charges for certain taxes and/or governmental fees imposed on Powder Watts and/or one or more of its affiliates. We will bill you monthly in arrears for most Services. If there is insufficient credit available on your Credit Card to cover our Service Fees and other charges, you agree to pay us the Service Fees and other charges via some other method acceptable to Powder Watts. You agree that Powder Watts may assess a processing fee of 2% to cover the cost of the fees charged by the credit card company.
- Billing Policies. Your bills will show the total amount due, the payment due date, payments, credits, refunds, purchases, prices, fees and charges to your account. You may pay your Service Fees by mail, on our website, through our automatic payment program, by calling a Powder Watts customer service representative or by any other means that we may designate from time to time. Partial payments will be applied first to the oldest outstanding bill. You must make your payment regardless of whether you receive a bill. We do not assume the risk of undelivered mail. In the event that you send checks or money orders marked with a designation such as “payment in full,” then we may accept them without waiving any of our rights (including, without limitation, our right to collect any other amounts owed by you), notwithstanding your characterization of such payment. The Late Payment Fee (as set forth in Exhibit 1) is not interest, a credit service charge or a finance charge. Certain additional prices, fees and/or charges may apply in certain circumstances to your payment for Services (including, without limitation, those set forth in Exhibit 1).
- Alterations to Payment Terms. In the event that your account is past due on more than one (1) occasion, then we may at any time require that you pay for all Services in advance by charging you estimated Service Fees. If we do this, we may issue credits or corrections once we determine the actual Service Fees.
- Restarting your Services. In the event that you do not pay your bill in full by its due date, or you at any time otherwise fail, neglect or refuse to make timely payment for your Services or any other payments under this Agreement or your applicable Customer Agreement as and when due, then we may disconnect your Services without notice at any time, and in such event we will be wholly relieved from any and all of our duties and obligations under this Agreement and your applicable Customer Agreement. In the event that your Services are disconnected for non-payment or any other reason, then before we reconnect your Services, Powder Watts may require that you pay, and you agree to pay: (i) all past due prices, fees and charges; (ii) all outstanding prices, fees and charges accrued through the date of such disconnection; and (iii) a deposit equal to a minimum of one month of prices, fees and charges for the Services and other services that you received prior to disconnection. In the event that your Services are disconnected for non-payment or any other reason, then, even if you pay to restart your Service, you will no longer be eligible to receive any credits, refunds, price reductions or any other form of compensation, including, without limitation, any remaining credits, refunds, price reductions or any other form of compensation that you would have been eligible to receive had your Services not been disconnected. Unless required by applicable law, deposits will not be segregated from other funds and will not earn or accrue interest. Promotional pricing is valid only at the time of installation.
- Billing Errors. You must pay all prices, fees and charges set forth in any bill by the due date of such bill, or among other things, you will be subject to a Late Payment Fee (as set forth in Exhibit 1). All payments for Services must be made directly to us, unless we authorize otherwise. Powder Watts shall have no obligation to provide Services for which payment is made to a third party, unless we agree otherwise.
- Billing Representative Payment Terms. In the event that we authorize a third-party billing representative to bill you for Services, then different or additional payment and billing terms, conditions, options, prices, fees and charges may apply.
- Early Termination Service Fees. Depending on your applicable Customer Agreement, you may incur prices, fees and/or charges in the event that your Services are cancelled or disconnected before the expiration of a term commitment (each, an “Early Termination Fee”). Please reference your applicable Customer Agreement for details regarding any Early Termination Fee that may apply. If your Customer Agreement does not reference an Early Termination Fee, your Early Termination Fee will be calculated as the greater of: (i) $200 per Switch, or (ii) 50% of the total estimated Service Fees you would be charged through the unexpired term of your Customer Agreement for each Powder Watts Switch. Notwithstanding your term commitment, Powder Watts will not charge you an Early Termination Fee if you disconnect your Powder Watts Service within 24 hours after you accept the terms and conditions of this Agreement by activating your Services.
- Interest and Collection Costs. You agree that if you are late in paying any Service Fees, we may charge interest at the lower of: (i) 1.5% per month or (ii) the maximum rate permitted by applicable law. If we turn your account over to a collection agency or attorney for collection, you agree to pay all collection costs, including reasonable attorneys’ fees and court costs, incurred in collecting any amounts you owe us.
- CANCELLATION OF SERVICE
- Continuation of Services. Your subscription to Services will automatically continue unless and until you cancel your Services or we disconnect your Services, in each case as provided in this Agreement or in your applicable Customer Agreement.
- Cancellation Policies. You may cancel your Services for any or no reason at any time (including, without limitation, during any term commitment to which you have agreed) by giving us notice of cancellation via the telephone number, or email, or Customer Service Mailing Address set forth in Section 1. In the event that you cancel your Services, then you may be subject to certain prices, fees and/or charges (including, without limitation, an Early Termination Fee) and you will continue to have obligations as set forth in this Agreement and your applicable Customer Agreement. Any cancellation will be effective no sooner than the date that Powder Watts actually receives notice that has been provided in accordance with this Agreement.
- Disconnection of Services. Powder Watts will disconnect your Services in the event that Powder Watts determines that: (i) you failed to pay any bill in full when it was due; (ii) you received Services, or any part of the Services, without paying for them, whether through theft of Services, piracy or otherwise; (iii) you assigned or attempted to assign any of your rights, duties or obligations under this Agreement or your applicable Customer Agreement; (iv) you received Services through a third-party billing representative and have become ineligible to receive applicable services provided by such third- party billing representative; (v) you filed for bankruptcy, or bankruptcy proceedings were commenced against you; (vi) you otherwise violated the terms and conditions of this Agreement or your applicable Customer Agreement; (vii) you harassed, abused, threatened or intimidated Powder Watts’s employees, agents, contractors or subcontractors including any Installers; or (viii) you unnecessarily and/or excessively placed telephone calls to Powder Watts. In addition, Powder Watts may disconnect your Services at any time (including, without limitation, during any term commitment to which you have agreed) for any other or no reason, except to the extent prohibited by law.
- No Credits, Refunds, Price Reductions or Other Forms of Compensation. In the event that your Services are cancelled or disconnected for any or no reason, then you still must pay all unbilled and outstanding billed balances. Prices, fees and charges, once charged to your account, are non-refundable, and no credits, refunds, price reductions or any other form of compensation will be provided in connection with the cancellation or disconnection of Services. In the event that you received discounted prices, fees or charges in connection with a promotion, and you cancel your Services or we disconnect your Services prior to the expiration of such promotion or prior to the expiration of any required promotional term commitment, then we may reverse or cancel the applicability of the promotion and you may be liable for standard charges (non-promotional pricing) applicable to the period in which you received promotional pricing or terms and you will not be entitled to any credits, refunds, price reductions or any other form of compensation for the unused portions of such discounted prices, fees or charges. If your Services are terminated, your Equipment will only function via the manual on/off switch located on the Equipment and will no longer be automated via the Services. You will no longer experience or benefit from any Energy Cost Savings if the Services are disconnected or terminated.
- EQUIPMENT AND ACCESS
- Equipment. In order to receive Services, you must purchase certain Powder Watts Equipment and have it installed by an Authorized Installer. Any installation fees charged by the Authorized Installer are solely your responsibility and you shall pay such fees to the Authorized Installer pursuant to a separate agreement between you and the Authorized Installer. Note that Powder Watts reserves the right to pay your Authorized Installer a percentage of your Service Fees as an inducement to encourage the Authorized Installer to respond to you and properly maintain your Equipment and the Services. Your purchase of Equipment will be governed by a separate agreement between you and the seller of such Equipment, which may be Powder Watts or a third party. In order to access the Services, the Equipment must be maintained in good condition, connected to a power source, to the Internet and have been properly installed by an Authorized Installer. You are solely responsible for maintaining and repairing the Equipment and ensuring it is in good condition, unless it is under warranty, and meets all of the foregoing conditions, in which case the applicable warranty may cover part or all of the cost of repairs.
- Internet Connection. To optimize the operation of your Equipment, you must continuously connect all Equipment to the Internet via a home network with adequate bandwidth for the Equipment to function properly, based on minimum requirements that may be established from time to time by Powder Watts. Failure to connect all Equipment to the same home network and to the Internet and failure to maintain a connection with adequate bandwidth may result in interruption or disconnection of Services. All fees or costs incurred by Customer in obtaining or maintaining a properly functioning network and Internet connection are solely the responsibility of Customer.
- Equipment Alterations and Access. Powder Watts may, without notice at any time and from time to time, through periodic downloads or by other means, add, delete, rearrange, alter, change and/or eliminate the software, applications, features and/or functionalities in (or accessed or received through) your Equipment and send electronic instructions to your Equipment without notice at any time and from time to time (including, without limitation, during any term commitment to which you have agreed). Powder Watts will use commercially reasonable efforts to schedule these downloads (or by other means) to minimize interference with or interruption to your Services, but you acknowledge and agree that Powder Watts shall have no liability to you for any interruptions in Services arising out of, relating to or in connection with such downloads (or other means). Powder Watts may, without notice at any time and from time to time, cease supporting one or more Equipment models. In the event that we add, delete, rearrange, alter, change and/or eliminate the software, applications, features and/or functionalities of Equipment or cease supporting your Equipment model, then you further acknowledge and agree that you are not entitled to any credits, refunds, price reductions or any other form of compensation because of any such addition, deletion, rearrangement, alteration, change and/or elimination. You agree not to modify, alter or otherwise change the Equipment or attempt to access it or open or disassemble the same. Any such modification, alteration or change, or any attempt to do so by you, may result in the voiding of any applicable warranty. You agree not to access or interfere with the Equipment’s smart switch or attempt to control the same or interrupt or access any network communications in which power consumption data, video feeds or other information is being transmitted to or from Powder Watts or its authorized third-party service provider(s).
- Proprietary Components and Software. Equipment contains components and software that are proprietary to Powder Watts and its licensors. This may include a smartphone app that you are required or asked to download in order for your Equipment and the Services to function properly or efficiently (the “App”). You agree that you will not try to reverse-engineer, decompile, disassemble, tamper with or modify, any software or hardware contained within any Equipment or the App. Such actions are strictly prohibited and may result in the disconnection of your Services and/or legal action.
- Software License. Subject to the terms and conditions of this Agreement and your applicable Customer Agreement, you are licensed to use the software provided with your Equipment or in the App, as updated by Powder Watts, its licensors and/or its suppliers without notice at any time and from time to time, solely in executable code form, solely in conjunction with lawful operation of the Equipment(s) that you purchased or leased and/or the App, and solely for the purposes permitted under this Agreement and your applicable Customer Agreement. You may not copy, modify or transfer any software provided in your Equipment(s) or as part of the App, or any copy of such software, in whole or in part. You may not reverse engineer, disassemble, decompile or translate such software, or otherwise attempt to derive its source code, except to the extent allowed under any applicable laws. You may not rent, lease, load, resell for profit or distribute any software provided in your Equipment or as part of the App, or any part thereof. Such software is licensed, not sold, to you for use only under the terms and conditions of this license, and Powder Watts, its licensors and its suppliers reserve all rights not expressly granted to you. Except as stated above, this license does not grant to you any intellectual property rights in the software provided in your Equipment or in the App. Any attempt to transfer any of the rights, duties or obligations of this license is null and void. In the event that you breach any term or condition of this license, then this license will automatically terminate.
- Stolen Equipment. In the event that any of your Equipment is stolen or removed from your premises without your authorization, then you must notify our customer service center by telephone or in writing (via the telephone number, Customer Service E-mail Address or Customer Service Mailing Address set forth in Section 1) immediately, but in any event not later than three (3) business days after such theft or removal, and provide a copy of the theft report you filed with the police in order to avoid liability for payment for unauthorized use of your Equipment following the date of such theft or removal. If you provide adequate evidence of theft in the form of a police report, then we may allow you to either: (i) suspend your Services during any period in which you do not have Equipment, and allow you to restart the Services upon your purchase and installation of replacement Equipment, or (ii) if you choose not to replace the Equipment, then we ma give you the option to terminate the Services effective as of, and you will not be liable for any Early Termination Service Fees or any unauthorized use of your Equipment that occurs after, we have received your notification of such theft or removal.
- Permission to Monitor and Access to Camera. By installing the Equipment and purchasing the Services, you authorize Powder Watts and its subcontractors to use the Equipment including any video or other monitoring systems to view, monitor and receive, record, and analyze video and other information and data collected with the use of the Equipment, which may include live or recorded video feeds of your roof, the heat tape on your roof or anything else within the field of view of the installed Equipment. You agree to take steps to ensure that the Equipment can only monitor and see the exterior of your residence and to take steps to protect the privacy of your residence and the interior of your residence so they are not within the field of vision of the Equipment. Powder Watts will only use the video collected or recorded for purposes of providing the Services and will require any employees or subcontractors who are granted access to agree to this same restriction. You agree not to access or attempt to access the video, photo or data feed between the Equipment and Powder Watts or its third-party service provider(s) and/or cloud-based storage system. Likewise, you will not attempt to reverse engineer, decipher, replicate or otherwise interfere with the communication protocol between the Equipment and such systems or Powder Watts or its third-party service provider(s).
- Permission to Contact Utility Provider. You give Powder Watts permission to contact your electric utility provider and to obtain full access to your account, including your account history, in order to calculate your Energy Cost Savings. You give your electric utility provider permission to allow Powder Watts such access and hereby release them from any liability for granting such access.
- TRANSFER OF SERVICES OR EQUIPMENT
You may not assign or transfer your Services or Equipment without our written consent, which will not be unreasonably withheld. If you sell your residence and wish to transfer the Services and/or Equipment to the new buyer of your residence, please contact Powder Watts Customer Service via firstname.lastname@example.org or at the phone number in Section 1 to initiate a transfer process. Powder Watts reserves the right to charge a Transfer Fee in connection with authorizing the transfer and to decline to authorize the transfer in the event the transferee does not pass Powder Watts credit check process.
- LIMITATION OF OUR LIABILITY
- INTERRUPTIONS AND DELAYS. YOU ACKNOWLEDGE AND AGREE THAT NONE OF THE RELEASED PARTIES (AS DEFINED BELOW) WILL BE LIABLE FOR ANY INTERRUPTION IN ANY SERVICES OR FOR ANY DELAY OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, IN THE EVENT THAT SUCH INTERRUPTION OR DELAY ARISES IN CONNECTION WITH ANY OF THE FOLLOWING: (I) THE TERMINATION OR SUSPENSION OF YOUR ACCESS TO ALL OR ANY PORTION OF SERVICES; (II) THE UNAVAILABILITY OR INTERRUPTION OF INTERNET OR NETWORK SERVICES; (III) A CHANGE IN THE SOFTWARE, APPLICATIONS, FEATURES AND/OR FUNCTIONALITIES AVAILABLE WITH YOUR EQUIPMENT; (IV) ANY SOFTWARE OR OTHER DOWNLOADS INITIATED BY US; (V) ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, SATELLITE OR UPLINK FAILURE, ACTS OF ANY GOVERNMENTAL BODY; OR (VI) ANY CAUSE BEYOND OUR REASONABLE CONTROL. “RELEASED PARTIES” MEANS POWDER WATTS, POWDER WATTS’S PAST AND PRESENT AFFILIATES (INCLUDING, WITHOUT LIMITATION, POWDER WATTS, LLC AND ITS DIRECT AND INDIRECT SUBSIDIARIES, POWDER WATTS’S THIRD-PARTY VENDORS AND BILLING REPRESENTATIVES, ALL DISTRIBUTORS, RETAILERS, INSTALLERS, AND THE PREDECESSORS, SUCCESSORS AND ASSIGNS OF ALL OF THE FOREGOING PERSONS AND ENTITIES, AND THE PAST AND PRESENT OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, PARTNERS, AGENTS, ATTORNEYS, SHAREHOLDERS AND LEGAL REPRESENTATIVES OF ALL OF THE FOREGOING PERSONS AND ENTITIES.
- ALTERATIONS TO EQUIPMENT. NONE OF THE RELEASED PARTIES WILL BE LIABLE FOR ANY ALTERATION TO OR TRANSFER OF ANY EQUIPMENT, INCLUDING, WITHOUT LIMITATION, REMOVING OR DISABLING SOFTWARE, APPLICATIONS, FEATURES AND/OR FUNCTIONALITIES.
- AUTHORIZED INSTALLERS ARE INDEPENDENT CONTRACTORS. YOU ACKNOWLEDGE AND AGREE THAT AUTHORIZED INSTALLERS ARE INDEPENDENT CONTRACTORS WHO OWN THEIR OWN BUSINESS, HAVE THEIR OWN LICENSES AND OTHERWISE CONDUCT THEIR BUSINESS WITHOUT ANY SUPERVISION OR CONTROL BY POWDER WATTS. EVEN IF SUCH PARTIES HAVE BEEN CERTIFIED OR AUTHORIZED BY POWDER WATTS OR ONE OF ITS AUTHORIZED DISTRIBUTORS, NEITHER POWDER WATTS NOR SUCH DISTRIBUTOR SUPERVISES OR SCREENS AUTHORIZED INSTALLERS NOR SHALL EITHER OF THEM OR ANY RELEASED PARTIES HAVE ANY LIABILITY OR RESPONSIBILITY OF ANY KIND FOR ANY ACTION OR INACTION OF ANY AUTHORIZED INSTALLER, INCLUDING FOR THEIR NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CRIMINAL BEHAVIOR OR ACTIVITY, TORTIOUS ACTIVITY, OR FOR ANY THEFT OR LOSS OF PROPERTY OR LIFE THAT THEY CAUSE OR ALLOW.
- DAMAGE TO RESIDENCE AND PERSONS. YOU ACKNOWLEDGE THAT THE USE OF HEAT TAPE TO MELT SNOW OR ICE IS INHERENTLY RISKY AND PRONE TO FAILURE OR ACCIDENT, WHICH MAY INVOLVE LEAKING VIA ICE DAMS AND OTHER CAUSES INTO THE INTERIOR OR YOUR ROOF OR RESIDENCE, CAUSING WATER DAMAGE THAT MAY INCLUDE DAMAGE TO YOUR ATTIC, TO YOUR WALLS, TO YOUR FLOORING, TO YOUR FURNITURE, TO OTHER PROPERTY OF YOURS OR YOUR GUESTS OR THIRD PARTIES, INCLUDING VEHICLES, VALUABLES, RECORDS AND OTHER ITEMS, AND TO ANY OTHER PARTS OF YOUR HOME AND MAY ULTIMATELY RESULT IN MOLD OR OTHER RISKS OR LOSSES, WHICH MAY ALSO CREATE HEALTH RISKS OR HAZARDS FOR RESIDENTS OR VISITORS, WHETHER OR NOT YOU INSTALL THE EQUIPMENT OR USE THE SERVICES. THE USE OF HEAT TAPE AND THE EQUIPMENT AND SERVICES MAY ALSO INCREASE THE RISK OF FIRE DUE TO THE INCREASED USAGE OF ELECTRICITY AND TO THE ADDITIONAL INSTALLATION AND USE OF CABLES AND OUTLETS. THE USE OF THE EQUIPMENT AND SERVICES MAY INCREASE THE RISK OF SUCH OUTCOMES SINCE THE HEAT TAPE WILL NOT BE CONSTANTLY TURNED ON. YOU ARE VOLUNTARILY ENTERING INTO THIS AGREEMENT IN ORDER TO EXPERIENCE ENERGY SAVINGS AND ARE WILLING TO ASSUME SUCH RISKS. YOU AGREE THAT NONE OF THE RELEASED PARTIES WILL BE LIABLE FOR ANY DAMAGE RESULTING FROM THE FAILURE OF THE SERVICES OR EQUIPMENT TO PROPERLY MANAGE HEAT TAPE ON THE ROOF OF YOUR RESIDENCE OR PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OR FAILURE OF SUCH HEAT TAPE TO TURN ON OR OFF OR TO FUNCTION PROPERLY DUE TO ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT.
- WARRANTIES AND DISCLAIMER OF WARRANTIES. YOUR POWDER WATTS EQUIPMENT COMES WITH A TWO (2) YEAR MANUFACTURER’S WARRANTY. DETAILS CAN BE FOUND AT WWW.POWDERWATTS.COM/WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN SUCH WARRANTY AAD EXCEPT AS OTHERWISE PROVIDED TO THE CONTRARY BY APPLICABLE STATE LAW, NONE OF THE RELEASED PARTIES MAKES ANY ADDITIONAL OR OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, REGARDING YOUR POWDER WATTS EQUIPMENT OR ANY OTHER EQUIPMENT OR ANY SERVICES FURNISHED TO YOU. ALL SUCH WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
- DAMAGES LIMITATION. EVEN THOUGH YOU HAVE RELEASED THE RELEASED PARTIES FROM ANY AND ALL LIABILITIES AS DESCRIBED ABOVE, YOU ACKNOWLEDGE AND AGREE THAT IN THE EVENT THAT ANY OF THE RELEASED PARTIES NONETHELESS ARE DETERMINED TO BE LIABLE TO YOU OR TO ANY OTHER PERSON WHO ACCESSES YOUR PROPERTY OR RESIDENCE OR IS EXPOSED TO THE EQUIPMENT OR ANY SITUATION OR ISSUE CAUSED BY THE EQUIPMENT OR SERVICES, THEN THE RELEASED PARTIES WILL BE LIABLE TO YOU AND TO SUCH PERSONS ONLY FOR YOUR OR THEIR DIRECT DAMAGES AND IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE TO YOU OR THEM FOR AN AGGREGATE AMOUNT IN EXCESS OF THE PRICES, FEES AND CHARGES PAID BY YOU TO THE RELEASED PARTIES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT. NONE OF THE RELEASED PARTIES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
- DISPUTE RESOLUTION, MANDATORY AND BINDING ARBITRATION AND CLASS ACTION WAIVER
- Mandatory and Binding Arbitration. In the event that you or we have a Dispute (as defined below) that cannot be resolved through informal dispute resolution pursuant to Section 10(C), then you and we agree (unless you opt out of Section 10 in accordance with Section 10(H)) to resolve such Dispute in an individual action, either through binding arbitration or in small claims court, instead of in courts of general jurisdiction. You acknowledge and agree that, in the event that you or Powder Watts commences an individual action in small claims court in accordance with Section 10 and it is determined that the applicable small claims court cannot adjudicate such individual action (e.g., such small claims court lacks jurisdiction over such individual action), then such Dispute may only be resolved through an arbitration proceeding pursuant to Section 10. Arbitration is more informal than a lawsuit in court. Arbitration means that you will have a fair hearing before a neutral arbitrator rather than before a judge or jury in a court. Arbitrators can award the same damages that a court can award. Proceeding in arbitration may result in limited discovery and is subject to limited review by courts. Arbitration means that you waive your right to a trial by a jury or a trial by a judge (other than in small claims court). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class or representative claims are not permitted. BY ENTERING INTO THIS AGREEMENT, YOU AND POWDER WATTS ARE EACH AGREEING TO WAIVE THE RIGHT TO A TRIAL BY JURY OR A TRIAL BY A JUDGE (OTHER THAN IN SMALL CLAIMS COURT) AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO BRING A CLAIM IN A REPRESENTATIVE CAPACITY. You and Powder Watts also each agree that this Agreement evidences a transaction in interstate commerce and, thus, that the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. Nothing in this Agreement precludes you from bringing issues to the attention of federal, state or local agencies. Such agencies can, in the event that the law allows, seek relief against us on your behalf.
- Dispute Defined. The term “Dispute” means, subject to the exceptions set forth in Section 10(K), any and all past, present or future disputes, claims or controversies between you and Powder Watts, whether based in contract, statute, regulation, ordinance, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort) or any other legal or equitable theory, and includes, without limitation, the validity, enforceability and/or scope of Section 10. The term “Dispute” is to be given the broadest possible meaning that will be enforced and includes, without limitation, any and all claims between you and Powder Watts in any way arising out of, relating to or in connection with: (i) this Agreement and any applicable Customer Agreement(s); (ii) Powder Watts’s services (including, without limitation, the Services); (iii) Powder Watts’s devices or products (including, without limitation, Equipment); (iv) billing, collection and credit reporting; (v) telephone calls, texts, faxes and emails that you claim you received from Powder Watts and/or a party acting or purporting to act on Powder Watts’s behalf; and/or (vi) Powder Watts’s and/or its agents’ collection, retention and/or disclosure of personally-identifiable information. For purposes of Section 10 only, “Powder Watts,” “we,” “us,” or “our” means Powder Watts Network, and its past and present direct and indirect subsidiaries, and the predecessors, successors and assigns of all of the foregoing persons and entities, and the past or present officers, directors, employees, partners, agents, attorneys, shareholders and legal representatives of all of the foregoing persons and entities.
- Informal Dispute Resolution; Notice and Opportunity to Cure. You and Powder Watts agree to first try to resolve any Dispute informally. Accordingly, neither you nor Powder Watts may start an individual action, either through binding arbitration or in small claims court, for at least sixty (60) calendar days after you or Powder Watts notifies the other of a Dispute by sending a written document titled “dispute resolution notice” (each, a “Dispute Resolution Notice”). You must send your Dispute Resolution Notice to the Powder Watts Notice Address in Section 1 and we must send our Dispute Resolution Notice to your billing address then appearing in our records. The Dispute Resolution Notice must: (i) state your name, account number and contact information; (ii) describe the nature and basis of the Dispute; and (iii) set forth the specific relief sought in connection with the Dispute. In the event that you and Powder Watts do not reach an agreement to resolve the Dispute within sixty (60) calendar days after the Dispute Resolution Notice is received, then you or Powder Watts may commence an individual action, either through binding arbitration or in small claims court, in accordance with Section 10.
- Arbitration Procedures. Unless you and Powder Watts agree otherwise in writing, the arbitration will be governed by the then-current Consumer Arbitration Rules (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”) excluding any rules for class or collective actions, as modified by this Agreement, and will be administered by the AAA and conducted before a single, neutral arbitrator. The AAA Rules are available online at the AAA’s website (as of August 7, 2015, www.adr.org), by calling the AAA (as of August 7, 2015, 1-800-778-7879) or by submitting a written request to Powder Watts at the notice address in Section 1. The arbitration will be held at a location in Salt Lake City, Utah unless we agree to hold it in the county of your billing address or you and we both agree to another location or a telephonic or “desk” arbitration (i.e., an arbitration conducted solely on the basis of written submissions by the participants). The arbitrator will be bound by the terms and conditions of this Agreement, including, without limitation, Powder Watts’s and your waiver of the right to a trial by jury or a trial by a judge (other than in small claims court) and the right to participate in a class action or to bring a claim in a representative capacity. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to adjudicate the merits of any Dispute. In the event that you and/or Powder Watts elect to submit a Dispute to arbitration pursuant to Section 10, then the party initiating arbitration must open a case by filing with the AAA: (i) a demand for arbitration; (ii) the administrative filing fee; and (iii) a copy of the applicable arbitration agreement (i.e., Section 10) — (collectively, the “Demand for Arbitration”). The filing may be made through “AAA WebFile,” located on the AAA’s website (www.adr.org), or by filing the Demand for Arbitration with any AAA office, regardless of the intended locale of any hearing.
- The Arbitrator’s Award. An arbitrator’s award will consist of a written statement of the disposition of each Dispute and a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator’s decision and award are final and binding, subject only to the limited court review permitted under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
- Costs of Arbitration. The payment of Arbitration fees will be governed by the AAA Rules.
- Class Action Waiver. NEITHER YOU NOR POWDER WATTS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING, WITHOUT LIMITATION, AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, IN CONNECTION WITH ANY DISPUTE (as defined above). Further, unless both you and Powder Watts agree otherwise in writing, the arbitrator may not consolidate more than one (1) person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event that any portion of this Section 10(G) is found to be unenforceable, then the entirety of Section 10 shall be null and void.
- Right to Opt Out. In the event that you do not wish to be bound by this Section 10, then you must notify Powder Watts in writing within thirty (30) days following the date that we first give you notice of your right to elect to opt out of Section 10 by providing written notification to Powder Watts at the notice address in Section 1 that includes: (1) your name and account number; (2) your service address; and (3) a clear statement that you do not wish to resolve Disputes with Powder Watts through arbitration. Your decision to opt out of Section 10 will have no adverse effect on your relationship with Powder Watts or Powder Watts’s delivery of Service(s) to you. Any opt-out not received within the thirty (30) day period set forth above will not be valid and you must pursue your Disputes (if any) as an individual action, either through binding arbitration or in small claims court, pursuant to and in accordance with Section 10 (excluding this Section 10(H), which in such event will no longer apply). In the event that you are a new Powder Watts customer, then your activation of a Powder Watts account or receipt of Services or Equipment and failure to notify Powder Watts in writing within thirty (30) days following the date of activation of your account shall constitute your acknowledgment and agreement that you are bound by Section 10. In the event that you are an existing Powder Watts customer, then your continued receipt of Services or Equipment and failure to notify Powder Watts in writing within thirty (30) days following the date that we first give you notice of your right to elect to opt out of Section 10 shall constitute your acknowledgment and agreement that you are bound by Section 10. We will be deemed to have given you notice of your right to elect to opt out of Section 10 as follows: (a) in the event that we send you notice by U.S. mail (including, without limitation, on a mailed bill, bill insert, notice, letter or postcard), then it will be considered given three (3) days after it is first deposited in the U.S. mail, given to you at your billing address then appearing in our record, (b) in the event that we send you notice electronically (including, without limitation, via an e-mail, electronic bill, social media message or attachment), then it will be considered given at the time we first send an electronic communication containing such notice or notifying you of the availability of such notice (or the electronic bill in which it is included) to the electronic contact information (including, without limitation, e-mail address or social media (e.g., Facebook, Twitter) identifier) then appearing in our records; and (c) in the event that we send you notice or on your Equipment (including, without limitation, through pop-up messages sent to your App) or through publication on powderwatts.com, mypowderwatts.com, powderwatts.com/legal or other website, then it will be considered given when first broadcast, sent or published.
- Miscellaneous. Notwithstanding any provision in this Agreement to the contrary, in the event that Powder Watts makes any future change to Section 10 (other than a change to the Notice Address), then you may reject any such future change as follows: (i) in the event that we elect to provide notice of such change, then by sending written notice to Powder Watts at the Notice Address of your rejection of such change within thirty (30) days following the date that we first give you our notice; or (ii) in the event that we elect not to provide notice of such change, then by sending written notice to Powder Watts at the Notice Address of your rejection of such change at any time. By rejecting any future change, you are agreeing that you will resolve any Dispute between you and Powder Watts in accordance with the unmodified language of Section 10, unless you have previously opted out of Section 10 in a timely manner. Except as otherwise set forth in Section 10 or under applicable law, each of you and Powder Watts shall bear and be solely responsible for its respective attorneys’ fees, costs and expenses incurred in connection with any Dispute.
- Expenses Outside of Arbitration. Except as otherwise expressly set forth in this Agreement, in the event that either party files a judicial or administrative action asserting a claim that is subject to arbitration (other than an individual action in small claims court) and the other party successfully compels arbitration, then the party filing that judicial or administrative action must pay the other party’s costs and expenses incurred in seeking to compel arbitration (including, without limitation, reasonable attorneys’ fees, expenses and court costs).
- Exceptions. The following Disputes are excluded from Section 10 (including, without limitation, the informal dispute resolution provision set forth in Section 10(C)) and may only be decided by a court of competent jurisdiction: (i) any Dispute based on your receipt of all or any portion of the Services without paying for them, whether through theft of Services, piracy or otherwise; and (ii) any Dispute based on a violation of the Communications Act of 1934, 47 U.S.C. § 1201 et seq., or the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 et seq.
- Survival. Section 10 shall survive expiration or earlier termination of this Agreement for any reason or no reason indefinitely.
- Notice. Except as otherwise provided by Section 10, any notice that we are required or permitted to give under this Agreement may be given via U.S. mail, electronically (including, without limitation, via an e-mail, electronic bill or social media message), on your bill, as a bill insert, on your Equipment(s) (including, without limitation, through pop-up messages on your App), through publication on powderwatts.com, powderwatts.com/legal or other website, by telephone or by any other reasonable means. In the event that we give you notice by U.S. mail (including, without limitation, on a mailed bill, bill insert, notice, letter or postcard), then it will be considered given three (3) days after it is first deposited in the U.S. mail, addressed to you at your billing address then appearing in our records. In the event that we give you notice electronically (including, without limitation, via an e-mail, electronic bill, social media message or attachment), then it will be considered given at the time we first send an electronic communication containing such notice or notifying you of the availability of such notice (or the electronic bill in which it is included) to the electronic contact information (including, without limitation, e-mail address or social media (e.g., Facebook, Twitter) identifier) then appearing in our records. In the event that we give you notice on your Equipment(s) (including, without limitation, through pop-up messages on your App) or through publication on powderwatts.com, powderwatts.com/legal or another website, then it will be considered given when first broadcast, sent or published. In the event that we give you notice by telephone, then it will be considered given when personally delivered to you or when left as a message at your telephone number then appearing in our records. Unless otherwise specified in this Agreement, any notice required or permitted to be given by you under this Agreement shall be in writing and shall be sent by first-class mail addressed to us at Powder Watts, LLC, Customer Service Center, 2570 Rasmussen Road, Park city, UT 84098, and shall be deemed given when received by us at such mailing address.
- Physical Address/Change of Address. When setting up your Powder Watts account, you must provide us with the physical address where your Equipment will be located and your Services will be provided. This information is necessary for Powder Watts to calculate your Service Fees. A post office box does not meet this requirement. You must give us immediate notice of any change of name, mailing address, e-mail address, telephone number, physical address where your Equipment is located or Services provided, including any change to any contact information. You may do this by notifying us at the telephone number, Customer Service E-mail Address or Customer Service Mailing Address set forth in Section 1.
- Consent to Call Your Telephone Number. You authorize Powder Watts and its affiliates, and its and their third-party representatives, to contact you: (i) regarding your account; (ii) to recover any unpaid portion of any obligation to Powder Watts or its affiliates; and/or (iii) for any other purpose not prohibited by applicable law. In each case, such contact may be made by any means not prohibited by applicable law (including, without limitation, an automated dialing or prerecorded messaging system) at the telephone number(s) that you provide to Powder Watts, including, without limitation, any mobile telephone number(s). You acknowledge and agree that you do not need to provide a mobile telephone number to receive Services. For the avoidance of doubt, with respect to any land-based telephone number(s) that you provide to Powder Watts, you acknowledge and agree that Powder Watts and its affiliates, and its and their third-party representatives, may contact you by any means not prohibited by applicable law (including, without limitation, an automated dialing or prerecorded messaging system) with offers, solicitations and promotions, except as prohibited by applicable law.
- Account Information. In the event that you have an online account with us, then you are responsible for maintaining the confidentiality of your account username and password and for all activities that occur under your account username and/or password. You must: (i) keep your account username and password confidential and not share them with anyone else (including, without limitation, any person claiming to be a Powder Watts customer service representative); and (ii) immediately notify us of any unauthorized use of your password and/or account username or other breach of security. You can only be sure you are speaking with Powder Watts when you place a telephone call to the telephone number set forth in Section 1 or posted on www.powderwatts.com, or utilize Powder Watts’s online customer service chat.
- Third-Party Billing Representatives. We may enter into relationships with third parties to provide billing and other services on our behalf, in which case the terms and conditions of this Agreement shall apply to such third parties as applicable under the circumstances. Additional terms and conditions imposed by our third-party billing representatives may apply. For example and without limitation: (i) late fees and charges imposed by our third-party billing representatives may be administered according to our third-party billing representative’s billing procedures and applicable state tariffs and regulations; (ii) our third-party billing representatives may require that you pay all past due prices, fees and charges for Services, a restart price, fee or charge and/or a prepayment before we reconnect your Services; and (iii) other services provided by our third-party billing representatives (including, without limitation, local telephone service) may need to be restored before Services can be restored, and a restoral fee and/or deposit may be required to restore third-party billing representative services. Partial payments on third-party billing representative bills may be applied first to the balance due for other services billed on your third-party billing representative bill (including, without limitation, telephone service) according to the third-party billing representative’s billing procedures and applicable state statutes and regulations. Please contact your third-party billing representative for details. Failure to pay all or any part of your third-party billing representative bill may result in disconnection of Services. In the event that your account is assigned by us to a third-party billing representative, then we will provide you notice of such assignment.
- Credit Checks. You authorize Powder Watts to investigate your financial responsibility and creditworthiness (including, without limitation, acquiring credit reports and histories) and to report any payment defaults to credit reporting agencies. Such credit checks may require you to provide Powder Watts with your social security number. Under the Fair Credit Reporting Act, you have the right to notify Powder Watts in the event that you believe we have reported inaccurate information about your account to any credit reporting agency. You may do this by notifying us at the Customer Service E-mail Address or Customer Service Mailing Address set forth in Section 1. Please include in any such notice: (i) your name and account number; (ii) your service address; and (iii) a description of why you believe we have reported inaccurate information about your account to any credit reporting agency.
- Applicable Law. This Agreement and all matters relating to its validity, construction, performance and enforcement, and any claim, complaint or dispute (including, without limitation, any Dispute) arising out of, relating to or in connection with any aspect of this Agreement, the Services or the Equipment shall be governed by the laws and regulations of the State of Utah without giving effect to its conflict of law provisions.
- Remedies Cumulative. The rights and remedies provided under this Agreement to Powder Watts in case of your default or breach of this Agreement are cumulative and without prejudice to any other rights and remedies that Powder Watts may have by reason of such default or breach at law, in equity, under contract (including, without limitation, this Agreement and your applicable Customer Agreement) or otherwise (all of which are hereby expressly reserved).
- Waiver. Powder Watts’s failure to exercise or delay in exercising any of its rights at law, in equity, under contract (including, without limitation, this Agreement and your applicable Customer Agreement) or otherwise (all of which are hereby expressly reserved) will not operate as a waiver by Powder Watts of such rights. Powder Watts will not be deemed to have waived any of its rights at law, in equity, under contract (including, without limitation, this Agreement and your applicable Customer Agreement) or otherwise unless such waiver is in writing. In the event that Powder Watts waives any of its rights pursuant to this Agreement in one instance, then such waiver will not be deemed a continuing waiver and will not preclude Powder Watts from exercising such rights in another instance.
- Severability. Except as otherwise set forth in Section 10(G), each provision of this Agreement is separable and divisible from every other provision and the enforceability of any one (1) provision does not limit the enforceability, in whole or in part, of any other provision. In the event that any provision of this Agreement or your applicable Customer Agreement is declared to be invalid, illegal, void or less than fully enforceable as to time, scope or otherwise, then (except as otherwise set forth in Section 10) such provision must be construed by limiting, reforming and reducing it so that such provision is valid, legal and fully enforceable while preserving to the greatest extent permissible the original intent of the parties; the remaining terms and conditions of this Agreement and your applicable Customer Agreement will not be affected by such alteration, and shall remain in full force and effect.
- Other Policies. You agree that you will comply with all policies related to this Agreement, your applicable Customer Agreement, your Services and/or your Equipment, including, without limitation, any and all applicable privacy notices (which are available at powderwatts.com/legal). You acknowledge and agree that the use of your Services is subject to each such policy.
- Other. No salesperson, installer, customer service representative, authorized retailer or other similarly situated individual is authorized to change or override this Agreement or your applicable Customer Agreement. Powder Watts may, however, change this Agreement without notice at any time and from time to time. The terms and conditions of this Agreement and your applicable Customer Agreement that either are expressly stated to survive or by their nature would logically be expected to survive its expiration or termination will continue thereafter. This Agreement is in addition to any other written agreement(s), if any, between you and Powder Watts (including, without limitation, your applicable Customer Agreement) and except as provided to the contrary in this Agreement, all such written agreements shall remain in full force and effect. Except as expressly set forth in this Agreement to the contrary, this Agreement replaces and supersedes any and all prior Residential Customer Agreements in their entirety, and such prior Residential Customer Agreements shall be of no further force or effect whatsoever. In the event of any ambiguity between this Agreement and your applicable Customer Agreement, then Powder Watts shall have the sole and exclusive authority to interpret and/or make a final determination concerning any issue arising from such ambiguity.
EXHIBIT 1 – FEES
In addition to any amounts due for your Services and any other amounts due under this Agreement or your applicable Customer Agreement, you agree to pay the prices, fees and charges listed in the table below if and when applicable. Powder Watts may change these fees, increase or decrease these fees or impose additional fees without notice at any time and from time to time. You may call (435) 565-1530 to request an itemization of any cost that you will incur in order to purchase and/or lease Equipment or receive Services.
Type of Fee
Description of When Fee Applies
Activation Fee per Switch
Payable upon Activation of your account.
Late Payment Fee per Switch
You do not pay your bill in full on or before its due date plus interest charges.
Reconnection Fee per Switch
You reconnect to the Services after voluntarily disconnecting or being terminated for breach or non-payment of Service Fees
Returned Payment Fee per Switch
You make an EFT or check payment or credit card charge to Powder Watts and it is subsequently returned or reversed.
Service Call Fee
We send a certified technician to you outside of your warranty period (Service calls are not available in all areas, geographic restrictions apply).
Shipping and Handling Fee
Powder Watts delivers hardware to you via regular delivery outside of your warranty period (A $20.00 Extended Delivery Fee also applies to AK, HI, Puerto Rico or Virgin Islands).