PRIMO SERVICE AGREEMENT TERMS AND CONDITIONS
Updated March 23, 2021
These Terms and Conditions form part of the Service Agreement ("Agreement") between the entity/person named in the Agreement ("Customer", "you", and "your") and DS Services of America, Inc. dba Primo Water North America ("Primo", "we", "us" and "our"). This Agreement affects your rights by requiring that disputes be resolved in arbitration or small claims court. In arbitration and small claims there is no jury trial and there is less discovery and less appellate review than in court.
1. Delivery, Installation, and Rental: We will deliver the products and services described in this Agreement subject to these Terms and Conditions. Bottles, dispensers, brewers, filters, and other equipment (collectively, the "Primo Equipment") are our property. You are not buying the Primo Equipment. Rather, you are leasing it and will return it when this Agreement ends. At your direction and as necessary, we will install the Primo Equipment. You are responsible for choosing its location. You acknowledge that liquids can leak and damage surfaces. You acknowledge that installing, using, and removing the Primo Equipment is your responsibility and may require changes to your property, home, or office. You agree not to permit anyone other than us to service, repair, relocate, or alter Primo Equipment without our prior written consent.
2. Rescission and Cancellation Rights: You may rescind this Agreement at any time without penalty before midnight of the third business day from the date of execution of this Agreement. To do so, you must notify Primo of your desire to rescind by timely: (a) delivering or mailing (postmarked by the third business day) a signed and dated Notice of Cancellation form to Primo Customer Care, 200 Eagles Landing Boulevard, Lakeland, Florida 33810; or (b) notifying Primo via email (at email@example.com), online (at www.water.com/myaccount), or by telephone (1-800-492-8377). If you do, any payments made by you under this Agreement (less any amounts for any goods opened, used or consumed) will be returned to you within ten (10) business days following Primo's receipt of your request to rescind. IF YOU DO NOT RESCIND THIS AGREEMENT BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY FROM THE DATE OF EXECUTION OF THIS AGREEMENT, THIS AGREEMENT SHALL CONTINUE AND REMAIN IN EFFECT UNTIL YOU CANCEL IT OR WE TERMINATE IT. YOU MAY CANCEL THIS AGREEMENT AT ANY TIME WITHOUT PENALTY. TO DO SO, YOU MUST NOTIFY PRIMO OF YOUR DESIRE TO CANCEL BY: (A) DELIVERING OR MAILING A SIGNED AND DATED NOTICE OF CANCELLATION FORM TO PRIMO CUSTOMER CARE, 200 EAGLES LANDING BOULEVARD, LAKELAND, FLORIDA 33810; OR (B) NOTIFYING PRIMO VIA EMAIL (AT firstname.lastname@example.org), ONLINE (AT www.water.com/myaccount), OR BY TELEPHONE (1-800-492-8377). IF YOU DO, YOUR CANCELLATION WILL TAKE EFFECT AT THE END OF THE NEXT FULL BILLING PERIOD. YOU MUST PAY FOR ALL PRODUCTS AND SERVICES RECEIVED, AND ALL APPLICABLE FEES, THROUGH THE END OF THE BILLING PERIOD IN WHICH THE CANCELLATION BECOMES EFFECTIVE.
3. Return of Equipment: If this Agreement is rescinded or cancelled, you must return all Primo Equipment and goods delivered to you under this Agreement (less any goods opened, used or consumed) in good condition (normal wear and tear excepted). You must make such equipment and goods available to Primo at your service address within 30 days following the effective date of rescission or cancellation of this Agreement, unless otherwise instructed by Primo. If you fail to make the equipment and goods available to Primo, you will remain liable for performance of all obligations under this Agreement.
4. Payments: You will pay Primo for (i) all products, services, and equipment ordered under this Agreement, plus applicable tax, (ii) the rental fee for all Primo Equipment, plus applicable tax, and (iii) all other charges, fees, taxes, surcharges, and deposits as provided in this Agreement (collectively, the "Service Fees"). We will provide you with an invoice for the Service Fees for each billing period, which generally lasts 28 days. Your payment of the Service Fees is due by the date specified on each invoice ("Due Date"). Payment of Service Fees for products and equipment constitutes your acknowledgement of receipt of such products and equipment.
5. Fees: In addition to the Service Fees, you agree to pay the following fees and charges. Primo will charge these fees, as applicable, to your account or to the credit card on file at Primo's option. Late Fee – If you do not pay any Service Fees, Primo may charge (i) a late fee per billing period, or (ii) interest per billing period on any unpaid amount from the invoice date until paid. If the late fee or interest rate exceeds the maximum rate allowed by law, the late fee will be equal to such maximum rate; Replacement Fee – A replacement fee equal to the full replacement value for any Primo Equipment that is lost or damaged beyond normal wear and tear while in your possession; Bottle Deposit – A bottle deposit, which is refundable subject to the return of empty bottles in good condition, normal wear and tear excepted; Returned Check Fee – A fee per returned check; Rejected Credit Fee – A fee per rejected credit card payment; Delivery Fee – A fee per delivery; Paper Billing Fee – A fee for paper billing per billing period if you do not sign up for electronic invoicing ("e-Invoice"). You may avoid this fee by signing up for e-Invoice at www.water.com/einvoice; Equipment Recovery Charge – A fee equal to the full replacement value of the Primo Equipment if you fail timely to return Primo Equipment when you are required to do so.
6. Authorization to Charge Credit Card: By signing this Agreement and providing your credit card information, you authorize Primo or a third-party payment processor to charge all Service Fees (each period on a recurring basis) that you owe under this Agreement to the credit card on file with Primo, until such amounts are paid in full. You agree that the issuer of the credit card may accept this Agreement as your authorization and make payment. You may edit your credit card information or withdraw your authorization by submitting your request by mail (to Primo Customer Care, 200 Eagles Landing Boulevard, Lakeland, Florida 33810), by telephone (1-800-492-8377), or online (at www.water.com/myaccount). By providing your credit card information, you authorize Primo to place an initial $50 hold charge against your credit card account which will be released within 30 days. You may also contact Primo to arrange for payment via ACH or Electronic Funds Transfer ("EFT") using any of the methods detailed above.
7. Notices: You agree that any notifications or communications to you in connection with this Agreement or any products, equipment, or services you receive from us may be provided in your periodic invoices and/or via e-mail using the address and/or email(s) we have on file for you. You agree to notify Primo immediately of any change in the address, email(s), and/or phone number(s) you have provided to us.
9. Consent to be Contacted: You agree that Primo (and others on its behalf) may send you marketing and non-marketing email messages to email addresses that you provide. You agree that Primo (and others on its behalf) may contact you at the phone number you provided (and any other phone number you later provide) through autodialed text messages and/or calls (including calls made using artificial or prerecorded voices). You agree that such communications may include, without limitation, communications about your service, account, balances, and debts. You acknowledge that message and data rates may apply to such communications. You also acknowledge and agree that your consent to such communications is a material term of this Agreement, is given as a bargained-for consideration, and cannot be unilaterally revoked or modified. If you have signed up to receive promotional text messages and/or calls, you have agreed to receive autodialed text messages and/or calls (including calls made using artificial or prerecorded voices) on behalf of Primo at the number(s) that you provided.
10. Default: In the event of a default by you, Primo shall have the right to terminate this Agreement immediately and all Service Fees due under this Agreement shall become due immediately as liquidated damages and not as a penalty. You agree to pay all such sums immediately upon request. In the event of an uncured default, Primo reserves the right to cease delivery, take measures to collect outstanding Service Fees, including through use of a third-party collection agency, and you agree to immediately return all Primo Equipment to your Route Sales Representative. The term "Default" includes one or more of the following: failure to pay Service Fees for a period of 60 days after the Due Date; misuse of the Primo Equipment and/or bottles; the institution by or against you of a proceeding in bankruptcy; abandonment of the Primo Equipment or the removal of the Primo Equipment without the written consent of Primo. You agree to pay all costs, including reasonable attorneys' fees and collection costs and collection agency fees, incurred by us in connection with your Default or the exercise of Primo's remedies, to the maximum extent permitted by law.
11. Warranties. YOU ACKNOWLEDGE THAT PROPER CLEANING AND MAINTENANCE OF PRIMO EQUIPMENT IS YOUR RESPONSIBILITY AND THAT FAILURE TO DO SO MAY LEAD TO PERSONAL INJURY. PRIMO DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES UNDER THIS AGREEMENT. YOU ACCEPT THE EQUIPMENT "AS IS" AND YOU ASSUME THE RISK OF LOSS, DAMAGE OR DESTRUCTION OF ALL PRIMO EQUIPMENT IN YOUR POSSESSION; YOU MUST PROMPTLY NOTIFY US IF THE PRIMO EQUIPMENT IS LOST, STOLEN, DAMAGED OR DESTROYED. TO THE FULLEST EXTENT PERMITTED BY LAW, PRIMO WILL INCUR NO LIABILITY WHATSOEVER TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN OR CONDITION OF THE EQUIPMENT OR ITS USE, OPERATION OR FUNCTION. YOU FURTHER ACKNOWLEDGE THAT PRIMO'S FILTRATION EQUIPMENT IS INTENDED TO BE USED ONLY TO IMPROVE THE QUALITY OF DRINKING WATER THAT IS ALREADY SAFE, POTABLE, NON-INFECTIOUS, NON-POLLUTED, AND COMPLIANT WITH FEDERAL STANDARDS FOR MUNICIPAL WATER.
12. Liabilities. YOU WAIVE THE RIGHT TO ASSERT A CLAIM AGAINST PRIMO MORE THAN TWELVE (12) MONTHS AFTER THE FIRST EVENT OR FACT THAT GIVES RISE TO THE CLAIM. IN NO EVENT SHALL PRIMO BE LIABLE FOR ANY DAMAGES THAT RESULT FROM ANY EVENT BEYOND PRIMO'S CONTROL, FOR EXAMPLE EARTHQUAKES, HURRICANES, OR OTHER SEVERE WEATHER EVENTS, EPIDEMIC, PANDEMIC, RIOT, STRIKE, WAR, TERRORISM, OR GOVERNMENT ORDERS OR ACTS. IN NO EVENT SHALL PRIMO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), REGARDLESS OF THE LEGAL THEORY, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, AND REGARDLESS OF WHETHER PRIMO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PRIMO'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THREE (3) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE BY YOU TO PRIMO PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS BEFORE THE FIRST EVENT OR FACT THAT GAVE RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN THIS PARAGRAPH SHALL NOT APPLY TO: (1) INJURIES TO THE BODY OR PERSON; (2) INJURIES CAUSED BY PRIMO'S WILLFUL, MALICIOUS, RECKLESS, OR GROSSLY NEGLIGENT ACTS OR OMISSIONS; OR (3) STATUTORY DAMAGES, TREBLE DAMAGES, OR ATTORNEYS' FEES AND COSTS. THESE LIMITATIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Indemnification: You agree to the fullest extent permitted by law to indemnify and hold us harmless in respect of any and all claims, damage, injury, cost, liability, expense (including reasonable attorneys' fees) or other loss suffered or incurred by us in connection with this Agreement.
14. Dispute Resolution: You or Primo may bring an individual action in small claims court if the amount claimed is within the jurisdiction of that court. Otherwise all Disputes shall be resolved by binding, individual arbitration pursuant to the Federal Arbitration Act. "Disputes" means any claim or controversy arising from or relating to this Agreement, the Primo Equipment, or your service from or relationship with Primo, including claims that arose before the execution of this Agreement, claims that arise after the cancelation or termination of this Agreement, and claims that are the subject of purported class action litigation. "Disputes" does not, however, include any issues relating to the existence, scope, validity, or enforceability of this arbitration provision. Arbitrations shall be administered by an organization to be jointly chosen by the parties pursuant to the version of its rules and this provision that are in effect when notice of a Dispute is given. Demands for arbitration must be accompanied by a detailed statement of claim that is personally verified and executed by the claimant. Unless you agree otherwise, any hearing will take place in the county where you reside. The arbitrator's award may be entered in any court of appropriate jurisdiction. You will not be responsible for any arbitral fees that exceed the fees you would have incurred if the dispute had been brought in court. If you hire an attorney to represent you in arbitration, you are responsible for your attorneys' fees and costs but may recover them from Primo to the same extent as in court. If the arbitrator finds that your Dispute was frivolous or brought for an improper purpose, however, Primo may seek reimbursement of its reasonable attorneys' fees from you, your attorney, or both, to the same extent as in court. Waivers: WHETHER IN ARBITRATION OR COURT, YOU AND PRIMO WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PROSECUTE OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION. This arbitration provision shall survive the cancellation or termination of the Agreement.
15. General: We may amend or add to the terms of this Agreement at any time, upon prior written notice to you. If you object to the change, you may provide notice of cancellation as set forth in Section 2. Primo may assign this Agreement and any of its rights hereunder to a third party without notice. You may not assign this Agreement and any such assignment will be null and void. If any provision of this Agreement is held invalid or unenforceable, all other provisions will remain in full force and effect. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT BETWEEN US WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES ALL PRIOR AGREEMENTS OR UNDERSTANDINGS (EXPRESS OR IMPLIED), NEGOTIATIONS, OR COMMITMENTS OF ANY NATURE WHATSOEVER RELATING GENERALLY TO THE SAME SUBJECT MATTER. If there is any conflict or inconsistency between the terms of this Agreement and any purchase order or other document provided by you, this Agreement prevails. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF GEORGIA.