Terms and Conditions – LEGAL NOTICE

PLEASE READ THESE TERMS AND CONDITIONS OF USE WHICH INCLUDES AN END USER SOFTWARE LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE BEACON PROACTTM DEVICE AND/OR THE BEACON SITES SINCE THIS IS A LEGAL AGREEMENT BETWEEN BEACON TECHNICAL SYSTEMS, LLC, HAVING ITS PLACE OF BUSINESS IN WAUKEGAN, ILLINOIS, AND YOU.

The Sumptest.com website and the Sumptest/Beacon applications for mobile phone, tablets, or the like (“Sites”) are owned and operated by Beacon Technical Systems, LLC (“Beacon”). Access to and use of the Sites is subject to the following Terms and Conditions and all applicable laws. By using the Beacon ProAct device and/or accessing and browsing the Sites, you (“End User”) accept and are indicating your acceptance, without limitation or qualification, and your agreement to be bound by these Terms and Conditions and acknowledge that any other agreements between you and Beacon (other than the Sales Terms and/or Limited Warranty associated with the ProAct device to the first purchaser of the device) are superseded and, have no force or effect in relation to the use of the Sites.

Use of Information

You may view the Sites and print individual pages from the Sites for your use in learning about, evaluating or acquiring Beacon’s products or services, provided that you agree to and accept without modification the Terms and Conditions set forth in this Legal Notice. You, or anyone acting on your behalf, may not modify, copy, reproduce, display, distribute, reuse, transmit, publish, license, create derivative works from, transfer or sell any information, including text, images, audio and animation from the Sites without written permission from Beacon. No permission is granted within this Notice to you to use Beacon names, images or logos, Sites addresses or other means to hyperlink other Internet Sites with any page in the Sites.

In connection with the Sites, Beacon may make available to End User certain data, services, and products furnished by third parties (collectively, the “Third Party Elements”). End User’s use of the Third Party Elements will indicate its agreement to this Section. End User shall have a limited, non-transferable (except to a successor entity), non-exclusive license to use the Third Party Elements solely in connection with the services. End User shall not: (i) download, reproduce, copy, alter, adapt, modify, improve, translate, create derivative works from, reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know how underlying the Third Party Elements; (ii) sublicense, resell, sublease or transfer any of its rights in this Section or otherwise use the Third Party Elements for the benefit of any third party or use the Third Party Elements to develop a product that is similar to the Third Party Elements or to operate a service bureau; or (iii) use the Third Party Elements in any manner or for any purpose not expressly authorized herein or in violation of applicable law. End User shall hold the Third Party Elements in strict confidence and not disclose them to any unauthorized party. In the event of termination or expiration of this Agreement, the license granted above shall automatically terminate. IN NO EVENT WILL BEACON OR THE LICENSORS OR SUPPLIERS OF THE THIRD PARTY ELEMENTS BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY ELEMENTS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. END USER WAIVES ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT IT MAY HAVE AGAINST BEACON OR THE THIRD PARTY LICENSOR OR PROVIDER RELATING TO THE THIRD PARTY ELEMENTS. END USER’S SOLE AND EXCLUSIVE REMEDY WITH REGARD TO THE THIRD PARTY ELEMENTS IS TO CEASE USE OF THOSE ELEMENTS.

Sump System Alerts

The Sites may send emails and/or text messages over SMS regarding status changes for your sump pump(s) (Sumptest Alert Program). The frequency of sent messages may change from time to time and is determined by Beacon and by the account setup. Enrollment is completed using the Sites. A mobile phone number is required to receive Alerts by SMS and/or the Beacon mobile application. USA and Canada numbers must include Area Code. Subject to other terms, including applicable payment terms, End Users are allowed to opt out of this program at any time. Message and Data rates may apply. Contact your carrier for details. To cancel or stop receiving these messages, follow the procedures outlined on the Sites. For further information, help, or assistance you can contact Beacon via email at support@sumptest.com or via telephone at 312-419-0800, Alerts sent via SMS may not be delivered to you if your phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of your wireless carrier may interfere with message delivery, including your equipment, terrain, proximity to buildings, foliage, and weather. You acknowledge that urgent alerts may not be timely received and that neither Beacon nor your wireless carrier guarantees that alerts will be delivered. By participating in the Sumptest Alert Program, you agree to the Terms and Conditions.

Intellectual Property

Everything you see or read on the Sites shall be considered Beacon’s intellectual property and is protected unless otherwise noted and may not be used except as provided in these Terms and Conditions or in the text on the Sites without the express written permission of Beacon. The Beacon names, logos and all related product names, service names, design marks and slogans displayed on the Sites are trademarks, service marks or other intellectual property of Beacon and may not be used in any manner without the express written consent of Beacon. Nothing on the Sites shall be construed as granting, by implication, or otherwise, any license or right to use any intellectual property at the Sites. Any failure to comply with the terms, conditions, and notices on the Sites will result in automatic termination of any rights granted to you, without prior notice, and you must immediately destroy all copies of downloaded materials in your possession or control.

Revisions

Beacon maintains the Sites for your information, education and evaluation of Beacon products or services. The content of the Sites may contain inadvertent inaccuracies, omissions and typographical errors. Beacon makes no warranties or representations about the accuracy or completeness of the Sites content. Beacon reserves the right to improve, revise and correct the Sites, in whole or in part, at any time without notice. Beacon expressly disclaims all liability for the use or interpretation by others of information contained in the Sites. Any user who utilizes, or makes decisions based on information contained in the Sites does so at their own risk. In exchange for using the Sites, End User agrees to hold Beacon harmless against any claims or damages arising from the use of the Sites and from any decisions that the End User makes based on such information.

Beacon may, at any time, revise these Terms and Conditions of Use for the Sites by updating this posting. By using the Sites, you agree to be bound by any such revisions and should periodically visit this page to review the current Terms and Conditions of Use to which you are bound.

Disclaimer of Warranty

BEACON DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR CONTENT OF THE SITES OR ANY OTHER WEBSITES LINKED TO OR FROM SAID SITES. THE MATERIALS AND INFORMATION ON THESE SITES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

BEACON SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OR REPLACEMENT GOODS, LOSS OR DAMAGE TO PROPERTY OR DATA ARISING OUT OF THE USE OR INABILITY TO USE THESE WEBSITES, ANY OTHER HYPERLINKED WEBSITES OR ANY BEACON PRODUCT, OR FROM DAMAGES RESULTING FROM THE USE OF OR RELIANCE ON THE INFORMAITON PRESENTED, EVEN IF BEACON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some jurisdictions do not allow the exclusion of consequential damages, so the above exclusion may not apply to you. Beacon assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing the Sites or your downloading of any materials, data, text, images, video, or audio from the Sites.

Links

Beacon has not reviewed any or all of the internet sites linked to the Sites and is not responsible for the content of any off-Sites pages or any other sites linked to the Sites. Access to any other internet sites linked to the Sites is at the End User’s own risk and Beacon is not responsible for the accuracy or reliability of any information, data, opinions, advice or statements made on these sites. Beacon provides links from the sites merely as a convenience and the inclusion of such links does not imply an endorsement by Beacon of these sites.

Linking to the Sites

All links to Beacon’s Sites must be approved in writing by Beacon. Any such approval will require that the link and its associated pages do not (a) misrepresent your relationship with Beacon; (b) imply that Beacon approves or endorses your websites, or your service or product offerings; and (c) present false or misleading impressions about Beacon or otherwise damage the goodwill associated with the Beacon name or trademarks.

Severability

The illegality or unenforceability of any provision of relevant terms and conditions, policies and notices shall not affect the validity and enforceability of any remaining provisions hereof.

Forum Selection / Applicable Law

Use of Sites shall in all respects be governed by the laws of the State of Washington, United States without reference to the principles of conflicts of law. You expressly agree that any suit brought relating to use of Sites shall be brought in a court of competent jurisdiction located in the State of Washington, United States.

PRIVACY STATEMENT

Beacon respects the privacy of every individual who visits the Sites owned and operated by Beacon or provides information to Beacon over the Internet. This Privacy Statement outlines what information Beacon will collect and how we will treat the information.

Personal Information

When you visit the Sites, Beacon will not collect any personally identifiable information about you (such as your name, address, telephone number or e-mail address) unless you provide it to us voluntarily. Portions of the Sites may request visitors to submit names, e-mail addresses and other personally identifiable information in connection with registering for product information or services. By submitting personally identifiable information, you agree, without limitation or qualification, to this information being used exclusively by Beacon and its dealers for business purposes. If you opt not to provide us with personally identifiable information, no material consequences will result, although you may be unable to receive specific product information, services or alerts.

Beacon may store and process personally identifiable information to better understand our visitors needs and how Beacon may improve our products and services. However, Beacon will not trade, rent or sell personal information gathered online about our visitors.

Contact Information

When you provide your Contact Information on the Sites, your information may be sent to both Beacon, its authorized dealers, and its business associates (such as plumbers, and distributors of Beacon products) for business purposes. Accordingly, when you provide Contact Information, you agree to allow Beacon, its authorized dealers, and business associates to contact you and use your information to provide you with assistance which you have expressly requested, including promotional and marketing materials.

Non-Personal Information

Beacon may collect information about you that is not personally identifiable such as domain names (e.g. aol.com, etc.), browsers, and the specific pages accessed on the Sites. This information is aggregated to measure the number of visits, average time spent on the Sites, number of pages viewed and methods by which our Sites were found. Beacon collects this information to evaluate the use of and to make improvements to the Sites.

Statement Changes

This Statement is subject to change at the sole discretion of Beacon. If Beacon changes our Statement, Beacon will update this page to keep You informed on how Beacon may use your information.

End User License Agreement (“EULA”)

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING. BY USING OR CONTINUING TO USE THE SITE, BEACON PROACT DEVICE, OR ANY RELATED APPLICATIONS, (OR BY CLICKING “I AGREE” AT THE END OF THIS END USER LICENSE AGREEMENT), YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS ENTIRE END USER LICENSE AGREEMENT (hereinafter referred to as “EULA”) AND AGREE TO BE BOUND BY THE SAME. PLEASE BE ADVISED THAT BEACON TECHNICAL SYSTEMS, LLC (HEREINAFTER THE “COMPANY” or “BEACON”) RESERVES THE RIGHT TO MODIFY THIS EULA IN ITS SOLE DISCRETION AT ANY TIME.

The Company has developed sumptest.com, as well as licensed any application(s) that may become available to access the same via a mobile phone, tablet, or the like, for the benefit of its customers. These products permit the owners of a Beacon ProActTM device (hereinafter generally referred to as “Customers”) to remotely monitor the test status of home sump pumps appropriately connected to Beacon ProActTM products.

This EULA shall govern the use of the ProAct device, sumptest.com site, and any related applications (“Apps”) including smart phone applications, and any e-mails, texts, or information generated by the ProAct device to remotely monitor the sump pump(s) associated with the ProAct device being registered at sumptest.com. This EULA shall also govern any access to the same via sumptest.com and/or any App(s) for the same. The e-mails, texts, or information generated by the ProAct device shall hereinafter be referred to as the “Data”. The Data shall only be for the personal use of the individual entering into this EULA (hereinafter referred to as “You”). This usage contemplates You sharing or permitting access to the Data to those limited individuals You select and authorize to receive and/or access the Data to help maintain Your sump pump(s) associated with the ProAct device. The use of the ProAct device, the login feature on sumptest.com, as well as any App offered to access the same, shall hereinafter jointly be referred to as the “Services”.

  1. Acknowledgements:

If You do not agree with the terms of this EULA, You may not receive Data from Your ProAct device, or use the Services to monitor your ProAct device or use the associated Data. Please be advised that this EULA does not limit or constrain any right or protection afforded to the Company through any previously granted consent(s) provided by You to the Company.

Your access to the Data and use of the Services is subject to this EULA and all applicable laws. By using or continuing to use the Site or Services, or by checking “I Agree”, You accept, without limitation or qualification, this EULA for Your Data and Services for the ProAct device and sumptest.com.

You hereby acknowledge and agree that in order to transmit Data, Your ProAct device uses a wireless data communications service that involves radio technologies and is subject to transmission and service area limitations, interruptions and dropped calls caused by atmospheric, topographical or environmental conditions, cell sites availability, equipment or its installation, governmental regulations, system limitations, maintenance or other conditions or activities affecting wireless service operation. Wireless Service and/or features may not be available in all areas and is subject to the terms and conditions of the applicable Wireless Service provider.

You hereby acknowledge and agree that Your ProAct device, the Data and/or the Services are to be used for monitoring sump pumps and are to be not to be used for any other purposes including, for example, monitoring other pumps such as but not limited to remote monitoring of pumps used in medical applications.

You hereby agree that any failure by ProAct device, the sumptest.com website, the Apps or the Services to perform as expected shall be excused in all cases including but not limited to a failure of a third party wireless or telecommunications provider serving a particular area, power failure, national emergency, interference by any governmental agency, acts of God, strikes, other labor disturbance, severe weather conditions, fire, terrorism, riots, war, earthquakes, or any other causes beyond the affected Party’s reasonable control.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF A PROACT™ DEVICE, OR THE SUMPTEST.COM WEBSITE OR THE APPS OR SERVICES DOES NOT CREATE ANY CONTRACTUAL RELATIONSHIP WHATSOEVER BETWEEN YOU AND ANY SUCH UNDERLYING SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN BEACON TECHNICAL SYSTEMS, LLC AND THE UNDERLYING CARRIER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT NEITHER BEACON NOR THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE ANY LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.

  1. License:

The technology that operates Your ProAct device, sumptest.com website, Apps and the Services and Data, including without limitation any content, graphics, processes and code, and all upgrades, updates, corrections and enhancements thereto and all copyrights and other intellectual property related thereto are the sole property of the Company and/or its licensors or suppliers, and the Company and/or its licensors or suppliers, if applicable, retain all right, title and interest in and to the technology and intellectual property used in or related to such ProAct device, sumptest.com, any App(s) accessing the same, or Service and Data. The Company grants You a personal, non-commercial, non-exclusive, non-transferable, (included in this limitation is a prohibition against sublicensing), terminable and limited license to use the technology and wireless capability embedded in the ProAct device and the sumptest.com website and the associated Apps as well as the Data, subject to all of the conditions and limitations set forth in this EULA. The limited grant of license detailed above is also subject to all of the laws and regulations applicable to the use of Your ProAct device, the technology and the wireless capability embedded in Your ProAct device, the sumptest.com website, the associated Apps, and the Data.

  1. Protecting Your Access to Information:

You shall be solely responsible for maintaining the confidentiality of your login information for sumptest.com and/or related Apps, and protecting from damage, theft or hacking any computer, laptop, tablet, cell phone or smart phone to which Data is being sent to update You regarding Your sump pump and/or from which You are accessing Services.

  1. Allowable uses of the Device and Data:

You may only use Your ProAct device, sumptest.com website, and related Apps, Services and the Data as set forth and authorized in this EULA. You are strictly prohibited from using Your ProAct device, sumptest.com or the Data in any manner not authorized by this EULA. Such prohibited activity includes but is not limited to: modifying, altering, adapting, improving, translating, creating derivative works from, reverse engineering, disassembling, decompiling or otherwise attempting to reveal the trade secrets or know how underlying the technology embedded in the ProAct device, the sumptest.com website, the related Apps or the Data, or copying or distributing any of the same except for the express purpose of monitoring Your sump pump or ProAct device or obtaining service for the same. You are strictly prohibited from (a) accessing the technology and code embedded in Your ProAct device, sumptest.com, and/or related Apps or the Data; (b) copying, reproducing, distributing, or in any manner duplicating any part or technology supporting Your ProAct device, sumptest.com, related Apps, or the Data, in whole or in part; (c) selling leasing, licensing, sublicensing, distributing, assigning, transferring or otherwise granting any rights in the service You register for with sumptest.com or the related Apps; (d) modifying, porting, translating, or creating derivative works of the technology supporting Your ProAct device, sumptest.com, related Apps, and/or the Data; decompiling, disassembling, reverse-engineering or otherwise attempting to derive, reconstruct, identify or discover any source code, underlying ideas, algorithms associated with Your ProAct device, sumptest.com, related Apps, or the Data; (e) removing any proprietary notices, labels, or marks from Your ProAct device, sumptest.com, related Apps, the messages relayed to You through Your ProAct device, sumptest.com, related Apps or the Data; (f) knowingly taking any action that would put the technology associated with the ProAct devices, sumptest.com, related Apps or the Data into the public domain. Furthermore, by entering into this EULA, You are hereby prohibited from using Your ProAct device, the technology embedded in the same, sumptest.com, related Apps, and/or the Data in any manner that could be construed as (a) harassing, abusing, threatening, intimidating, stalking, defaming, or in any way infringing or violating the rights of any other person, party, group of people, or group of parties; and You are further restricted from any (b) unlawful, fraudulent or deceptive use of the same; (c) attempting to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer, application, hardware or telecommunications equipment; (d) attempting to gain unauthorized access to Beacon’s computer network or any of Beacon’s user accounts; (e) encouraging conduct that would constitute a criminal offense, or that would give rise to civil liability through Your use, misuse, or abuse of Your ProAct device, its technology or wireless service, sumptest.com, related Apps and/or the Data. Be advised that Beacon may terminate this EULA effective immediately (except where it is restricted or prohibited by law) for any reason, including, but not limited to, Beacon’s reasonable conclusion that You have violated this EULA.

  1. No Warranty:

BEACON DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE TIMELINESS OF THE DELIVERY OF DATA VIA TEXT OR E-MAIL, OR THE ACCESSIBILITY OF THE DATA THROUGH ANY SERVICES.THE DATA AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHERMORE THE COMPANY SPECIFICALLY DOES NOT WARRANT AGAINST ANY INTERFERENCE THAT YOU MAY EXPERIENCE WITH YOUR USE AND ENJOYMENT OF THE PROACT DEVICE OR OF ANY APP ASSOCIATED WITH THE PROACT DEVICE, SUMPTEST.COM, RELATED APPS, SERVICES AND/OR ANY DATA ASSOCIATED WITH THE SAME. BEACON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE PROACT DEVICE, SUMPTEST.COM, OR RELATED APPS WILL MEET YOUR REQUIREMENTS OR THAT THE SAME WILL BE ERROR-FREE OR THAT BEACON WILL CORRECT ANY DEFECTS IN THE APP OR DATA; OR THAT USE OF THE PROACT DEVICE, SUMPTEST.COM OR RELATED APPS WILL NOT ADVERSELY AFFECT ANY DEVICE ON WHICH YOU USE THE SAME; OR THAT IT WILL NOT MODIFY OR CHANGE OR RENDER A PORTION OF YOUR DEVICE INACCESSIBLE OR UNUSABLE. YOU UTILIZE ANY DATA PROVIDED VIA THE PROACT DEVICE, SUMPTEST.COM, OR RELATED APPS AND/OR ACCESS ANY SERVICES THERETHROUGH AT YOUR SOLE RISK KNOWING THAT THE SAME MAY NOT BE ACCURATE. THE COMPANY HAS NO OBLIGATION TO PROVIDE ANY SUPPORT, INCLUDING CUSTOMER SUPPORT FOR THE PROACT DEVICE, SUMPTEST.COM, OR THE RELATED APPS INCLUDING BUT NOT LIMITED TO TROUBLESHOOTING ANY NEGATIVE IMPACTS THE SAME MAY HAVE ON YOUR DEVICE.

  1. No Insurance/Waiver of Subrogation:

The Company is not providing to You or any of its Customers insurance of any kind. Your payments are not insurance premiums. The fees charged by the Company for Services as well as the cost of products have no correlation to the value of Your property located at the site(s) of Your sump pump(s). The fees charged by the Company are based upon the value inherent to them. The risk of loss of Your real and personal property, as well as anyone else’s property located in Your premises is born by You. Protecting against risk of loss with appropriate insurance coverage is always advisable. In the event of any loss, damage or injury, the Company shall have no liability. Your exclusive remedy for compensation is with Your insurer, and not the Company. By clicking “I Agree” You hereby release and waive for Yourself and Your insurer any and all subrogation and other rights to recover against the Company that might arise as a result of the payment of any claim for loss, damage or injury by Your insurer.

  1. No Guaranty (Limitation of Liability):
  2. A) THE COMPANY SHALL HAVE NO LIABILITY TO YOU IF CHANGES IN THE WIRELESS SERVICE, SYSTEMS, OPERATIONS, EQUIPMENT, POLICIES OR PROCEDURES SUPPORTING YOUR PROACT DEVICE RENDER OBSOLETE OR OUTDATED ANY EQUIPMENT, HARDWARE, DEVICES OR SOFTWARE PROVIDED BY THE COMPANY TO YOU IN CONJUNCTION WITH YOUR USE OF THE SERVICES.
  3. B) THE COMPANY SHALL HAVE NO LIABILITY FOR ANY CAUSES OF ACTION, LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF (I) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS IN A WIRELESS CARRIER FURNISHING OF WIRELESS SERVICE, (II) FAILURES OR DEFECTS IN WIRELESS NETWORK OR SYSTEMS UTILIZED BY YOU OR THE PROACT DEVICE, (III) USE OF THE PROACT DEVICE OR THE SERVICE OR (IV) ANY DISABLING OF EQUIPMENT BY YOU.
  4. C) THE COMPANY SHALL HAVE NO LIABILITY FOR ANY INJURY TO PERSONS OR PROPERTY, LOSSES (INCLUDING ANY LOSS OF BUSINESS), DAMAGES, CLAIMS OR DEMANDS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, USE OR INABILITY TO USE THE WIRELESS SERVICE OR EQUIPMENT, RELIANCE BY ANY END USER OR CUSTOMER ON ANY DATA PROVIDED OR OBTAINED THROUGH USE OF THE SERVICES, WIRELESS SERVICE OR EQUIPMENT, ANY INTERRUPTION, DEFECT, ERROR, VIRUS, OR DELAY IN OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL BEACON BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE OR ATTEMPTED USE OF, OR THE INABILITY TO ACCESS, LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY NUMBERS OR SERVICES.
  5. D) THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OR REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA, ANY DAMAGES RESULTING FROM THE USE OF OR RELIANCE ON THE INFORMAITON PRESENTED, EVEN IF BEACON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE YOUR PROACT DEVICE, SUMPTEST.COM, THE RELATED APPS, THE DATA AND/OR THE SERVICES. Some jurisdictions do not allow the exclusion of consequential damages, so the above exclusion may not apply to You. The Company assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, Your computer equipment or other property on account of Your access to, use of, the Data or Services, or of browsing the sumptest.com Site, or related Apps Sites or Your downloading of any materials, data, text, images, video, or audio from said Sites.
  6. Indemnification:

You agree to indemnify, defend, and hold harmless the Company and its employees, agents, officers and directors, from and against any claims, damages, liabilities, costs, fines, penalties and expenses (including attorney and other professional fees and costs) arising out of or relating to (a) Your use or misuse of Your ProAct device, sumptest.com; the related Apps, and/or the Data and/or Services; (b) Your violation of this EULA or applicable law; (c) Your violation of any rights of a third party; or (d) any other negligent or intentional misconduct by You. The Company retains the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You are required to cooperate in asserting any available defenses.

  1. Termination:

Either side may terminate this EULA. You may terminate this EULA by cancelling Your subscription to the Service provided by sumptest.com and the related Apps. This EULA will automatically terminate without notice from the Company if You fail to comply with any terms of this EULA. Upon termination of the EULA, any rights granted to You by the EULA will cease. You agree that the Company may terminate this EULA and cease to support the ProAct device, sumptest.com, and the related Apps at any time at the sole discretion of the Company.

  1. If You directly or indirectly sell Your ProAct device or Your sump pump with Your ProAct device attached:

Please be advised that if You sell Your ProAct device, then the Services provided through sumptest.com and the related Apps are not transferrable to the new owner of Your ProAct device.

  1. Contact Information:

Should You need to contact the Company, the Company can be reached at info@sumptest.com or 312-419-0800 (US).

  1. Consent to Electronic Communications:

Consent to Electronic Communications. Although You are entitled to opt out of any advertising or marketing, You agree that the Company may contact You or provide You with any required notices, agreements, or other information concerning the availability of the Data and/or Services by e-mail or other electronic means. You also agree that the Company may send automated e-mails with alerts regarding severe problems with the Services that may impact the timeliness of notices provided regarding the status of Your sump pump attached to a ProAct device. You may choose to discontinue receiving these electronic communications at any time.

  1. Privacy Statement:

The e-mails and texts generated and sent by the ProAct device and the login feature on sumptest.com and the related Apps will be handled by a secure hosted server. The limited information that may be included in these messages includes the sender’s name, the sender’s and recipient’s e-mail addresses and information about the sump pump. Beacon may retain copies of the transmissions so that it can better assist its Customers.

The Company (also referred to as “we” or “Beacon” herein) respects the privacy of every Customer. The Company will never trade, rent or sell personal information gathered from these saved messages.

Customer grants Beacon and its vendors and licensors a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty-free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for Beacon’s and its vendors’ and licensors’ business purposes, including the provision of products and services to their customers; provided the Aggregated Data is combined with similar data from Beacon’s other customers and does not include (directly or by inference) any information identifying Customer or any identifiable individual.

This Privacy Statement is subject to change at the sole discretion of Beacon. By utilizing the ProAct device, sumptest.com, and/or the related Apps, accepting the software licensing agreement, or accessing Your information via sumptest.com or the related Apps, You hereby agree to be bound by the then-current Privacy Statement, acknowledge Your awareness of the Privacy Statement and grant Beacon permission to save the information disclosed above.

  1. No Export:

You shall not export, sell or otherwise dispose of any ProAct device, App or Data to any country not approved for export or to any person or entity You know, or should know, will result, directly or indirectly, in disposition of the ProAct device, App or Data contrary to U.S. Export Administrative Regulations (15 CFR parts 730-774) and/or Office of Foreign Assets Control (31 CFR 500-597) implemented pursuant to the Trading with the Enemy Act, (50 USC 1-44) and the International Emergency Economic Powers Act (50 USC 1701-1706).

  1. Governing Law, Venue and Jurisdiction:

This Agreement shall be governed and interpreted in accordance with the laws of the State of Washington, without reference to its conflict of laws or other rules that would require the application of the laws of another jurisdiction. You hereby submit to personal jurisdiction exclusively in the state and federal courts of Washington, and waive all objections to a Washington venue.

  1. Entire Agreement:

This EULA is separate and distinct from the Limited Warranty provided to the first purchaser of a ProAct device and this EULA constitutes the entire agreement and understanding between the Company and You regarding the matters set forth in this EULA. This EULA supersedes any previous written or oral agreements between us other than the Limited Warranty provided to the first purchaser of a ProAct device, and the Terms and Conditions of the Sites shall be read in conjunction with this EULA. To the extent there is any conflict between this Agreement and the Terms and Conditions, this Agreement shall prevail. You hereby agree that the Company has not made any inducements, commitments, conditions, representations or warranties of any kind to You whether direct, indirect collateral, express or implied, oral or written other than what has been set forth in this EULA.

  1. No Waiver:

Any forbearance or delay on the part of Beacon in enforcing any rights under this Agreement shall not be construed as a waiver of such rights. Any grant of a waiver in one instance shall not be construed as a continuing waiver in all similar instances. No provision of this Agreement shall be considered waived unless expressly waived in writing, signed by the party against whom enforcement of such provision is sought.

  1. Severability:

If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. Moreover, the Parties agree that the invalid, illegal or unenforceable provision shall be enforced to the maximum extent permitted by law in accordance with the intention of the Parties as expressed by such provision.

  1. Miscellaneous:

Modification and Notice. The Company reserves the right to modify, terminate or otherwise amend this EULA without notice. The current version of the EULA will be available on-line at www.sumptest.com. Your continued use of the ProAct device, sumptest.com, related Apps, the Services and/or the Data hereby constitutes Your agreement to be bound by any revisions to the EULA. You further acknowledge that any breach or threatened breach of this EULA by You will cause irreparable harm to the Company for which damages would not be an adequate remedy. Therefore, in addition to all other rights and remedies available at law to the Company, the Company shall further be entitled to seek immediate equitable relief which shall include but not be limited to injunctive relief as appropriate. Should the Company seek equitable remedies, it shall not be precluded or prevented from seeking all available remedies at law, nor shall the request of injunctive relief be deemed an election of remedies. In the event that a court of competent jurisdiction deems any provision of this EULA to be unenforceable, such provision shall be deemed to have been stricken from this EULA without impacting the other provisions. The Company hereby gives notice that no condition of this EULA may be deemed waived unless the Company or You respectively provide notice of waiver in writing.