SERVICE PLAN TERMS AND CONDITIONS (EQUIPMENT LEASE; DELIVERY SERVICES; PRODUCT SUPPLY)
These Service Plan Terms and Conditions are entered into by and between Eldorado Artesian Springs, Inc. (“Eldorado”) and the individual or entity (“you” or “your”) requesting to lease filtration, dispensing or other equipment (“Equipment”), or have products such as bottled water, coffee, or other beverages (“Products”) delivered to their place of business or residence by Eldorado (the “Service Plan”). Eldorado’s Service Plan Terms and Conditions, together with all quotations, orders, invoices, documents incorporated by reference, and other agreements entered into between you and Eldorado regarding the Service Plan (collectively the “T&C”), whether made via telephone, paper or electronically (via email or through the client portal), govern the Service Plan, including the lease of Equipment and/or delivery of Products to you. Eldorado may revise and update the T&C from time to time in its discretion. BY ORDERING A SERVICE PLAN, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY ELDORADO’S THEN-CURRENT T&C.
SERVICE PLAN, TERM and TERMINATION. You agree to the initial Service Plan identified on your first order to Eldorado. After the free introductory/trial offer period specified on the first order, you agree the Service Plan will be for a minimum period of one year beginning on the date specified on the order. If you continue the Service Plan after the initial one-year period, or retain any Equipment in your possession, the Service Plan will be on a month-to-month basis thereafter. The Service Plan may be modified at your request or in accordance with these T&C. The Service Plan you are receiving is the Service Plan reflected on the most recent invoice sent to you. Eldorado will send monthly invoices for the Service Plan on or about the 28th day of each month reflecting the charges for the next month. Additional invoices may be sent for additional products and services, as applicable. Invoices will include the Service Plan fees, delivery charges, variable delivery charges (such as mileage or fuel surcharges), Products purchased by you, applicable sales or other taxes, and any other amounts you owe that month pursuant to these T&C. You will timely pay all invoices or be subject to late fees or other penalties described in these T&C. Either party may terminate the Service Plan by giving the other party 30 days’ prior written notice. If you terminate the Service Plan during the initial one-year period, you agree to pay all amounts due at the time of termination and an early-termination fee in the amount of the greater of one-half (1/2) of the remaining amount due for the initial Service Plan or $50. Upon termination of the Service Plan, you will return all Equipment and pay all amounts due to Eldorado. If you do not return the Equipment, you will be charged the current replacement value of the Equipment.
EQUIPMENT OWNERSHIP AND USE. The Equipment described on the first order will be delivered to you as arranged. The installation of the Equipment shall be explained in detail when it is delivered to you. You agree to abide by all installation and use instructions provided to you. The Equipment may be changed per your request or as specified in these T&C, but the T&C will continue to apply to all Equipment in your possession. Eldorado will also lease you the number of water bottles required by your Service Plan and provide you with any necessary tubing, saddle valves or other ancillary components necessary to use the Equipment. Any such water bottles or ancillary components in your possession are also deemed to be Equipment under these T&C. The Equipment shall at all times be the sole and exclusive personal property of Eldorado. In no event shall the Equipment be deemed a fixture of the real property where it is located. You shall have no rights or property interest in the Equipment, except the right to use the Equipment at the agreed address during the term of these T&C. You shall not remove or relocate the Equipment without the prior written consent of Eldorado or allow the Equipment to be used with an Eldorado competitor’s products or delivery services.
EQUIPMENT MAINTENANCE AND DAMAGE: Eldorado will keep the Equipment in reasonable working order, if you meet your obligations under these T&C. If the Equipment is damaged (including leaking bottles) when you receive it, or the Equipment stops working correctly through no fault of yours, you shall take steps to mitigate damage to the Equipment or property where the Equipment is located, including without limitation, turning off the Equipment, removing water bottles and cleaning spills to avoid water damage, and immediately contact Eldorado to service the Equipment. You shall be responsible to keep the Equipment clean and for loss or damage to the Equipment from any cause while in your possession, reasonable wear and tear excepted. If your property is damaged by malfunctioning or damaged Equipment, for any reason, and you wish to make a property insurance claim, you must first make the claim under your own insurance policy.
PRODUCTS AND DELIVERY SERVICES. Eldorado will deliver the Products included in your Service Plan to you on the agreed schedule. If you order more or different Products than your Service Plan allows, there will be a charge per unit for the different or additional Product. Eldorado may adjust its prices for Products or delivery services. If you order, or accept delivery of, less Product than your Service Plan allows, you will be charged the Service Plan amount. Eldorado will periodically review the number of water bottles you have in your possession, including bottles that are damaged or unreturned, and compare the information to your Service Plan. You will be charged for unreturned or damaged water bottles after such review or upon termination of these T&C.
PAYMENT TERMS AND LATE FEES. All invoices are due and payable upon receipt. If any payment is not made within 30 days after the payment is due, any unpaid amounts shall be subject to interest charges, from the date due until paid, at the rate of 1.5% per month, compounded monthly, or the highest interest rate allowable by law (whichever is less), payable monthly. No partial payment made by you, or acceptance by Eldorado, shall cure any outstanding payment default, or prevent Eldorado from pursuing, or continuing to pursue, remedies for such default, or act as a waiver by Eldorado.
AUTHORIZATION FOR PAYMENT CARD CHARGE, ACH AND E-CHECK DEBIT. If you provide payment card information or bank account information to Eldorado, you hereby authorize Eldorado to charge the payment card, or to initiate an ACH bank debit or e-check debit of the bank account, to pay recurring charges for the Service Plan on the schedule specified in these T&C, or to pay any other amounts due to Eldorado, including without limitation, for loss, damage or failure to return Equipment after termination of the Service Plan. Eldorado reserves the right to charge you processing fees if you choose to pay by electronic means. This payment authorization shall remain in full force and effect until all payments due to Eldorado have been made in full.
ELDORADO’S WARRANTY AND LIMITATION OF LIABILITY. EXCEPT FOR PROVIDING PRODUCTS WHICH CONFORM WITH THE THEN-CURRENT PRODUCT DESCRIPTION PROVIDED BY ELDORADO FOR SUCH PRODUCT, AND SERVICING THE EQUIPMENT IN ACCORDANCE WITH SECTION 3, THE EQUIPMENT, PRODUCTS AND SERVICE PLAN ARE PURCHASED BY YOU “AS-IS” AND ELDORADO DOES NOT PROVIDE ANY OTHER WARRANTY FOR THE EQUIPMENT, PRODUCTS OR SERVICE PLAN, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR THAT THEY CAN BE USED FOR ANY PARTICULAR PURPOSE. FOR PRODUCTS THAT DO NOT COMPLY WITH THIS LIMITED WARRANTY, YOUR SOLE REMEDY IS REPLACEMENT OF OR CREDIT FOR THE PRICE OF THE NONCOMPLIANT PRODUCT, AND FOR EQUIPMENT THAT IS NOT IN WORKING ORDER DUE TO NO FAULT OF YOURS, ELDORADO WILL REPLACE THE EQUIPMENT WITHOUT ADDITIONAL CHARGE TO YOU. IN NO EVENT SHALL ELDORADO BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES. ELDORADO’S AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES OR CLAIMS FROM ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE LESSER OF $500.00 OR THE AMOUNTS PAID BY YOU TO ELDORADO IN THE PRIOR 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS OR DAMAGES.
INDEMNIFICATION. You shall defend, indemnify, and hold harmless Eldorado, and its officers, employees, agents and representatives from and against any and all liabilities, claims, proceedings, losses or damages (and all expenses associated therewith including legal fees and expenses) resulting from (a) the use of the Equipment or Products; and (b) your failure to comply with these T&C.
DEFAULT. If you fail to make payments, in full, when due, or you fail to comply with any other requirement of these T&C (“Default”), and the Default remains uncorrected for a period of five (5) days after Eldorado provides you with notice of the Default, Eldorado may, at its option, undertake any of the following remedies without limitation: (a) suspend or terminate the Service Plan; (b) charge all amounts due, including, without limitation, amounts in arrears, early termination fees, loss of Equipment, interest, costs and legal fees to which Eldorado is entitled; (c) pursue all legal and equitable remedies related to your Default and the Service Plan, including, without limitation, seeking damages under C.R.S. 18-4-405 (rights in stolen property) or for conversion of the Equipment, which remedies may include costs, attorney fees, fines, treble or other punitive damages; or (d) enter your premises, or any premises that the Equipment may be found, forcibly, if necessary, and repossess the Equipment. You hereby expressly waive any claim or right of action against Eldorado for trespass or damages caused by Eldorado exercising its rights of entry and repossession of the Equipment. If Eldorado repossesses the Equipment due to your Default during the initial one-year period of the Service Plan, you shall be responsible for amounts that would have been due during the remainder of the one year period, subject to Eldorado’s duty to mitigate damages.
COLLECTION COSTS; ATTORNEY’S FEES. If Eldorado incurs any costs, expenses, or fees, including reasonable attorneys’ fees and collection services fees, in connection with the collection or payment of any amounts due from you under these T&C, you agree to reimburse Eldorado for all such costs, expenses and fees. If either party incurs any legal fees or other costs associated with the enforcement of their rights under the T&C, the prevailing party as determined by the court in such action shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other party.
CHOICE OF LAW; VENUE These T&C will be governed by and interpreted in accordance with the laws of the State of Colorado, without giving effect to the principles of conflicts of law of such state. The parties hereby agree that any action arising out of these T&C will be brought solely in any state or federal court located in Boulder, Colorado. Both parties hereby submit to the exclusive jurisdiction and venue of any such court.
SURVIVAL. Each term and provision of these T&C that should by its sense and context survive any termination or expiration of these T&C, shall so survive regardless of the cause and even if resulting from the material breach of either party.
NOTICES. Any notice that must be given to Eldorado under these T&C must be emailed to firstname.lastname@example.org or mailed to 1783 Dogwood Street, Louisville, CO 80027 Attn: Accounting Department. Eldorado will provide invoices or other notices you by posting them to your on-line customer portal (if you have an account), emailing them to the email address you provide, or mailing them to the location where the Equipment is located.