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DS SERVICES OF AMERICA, INC. (DSS) SERVICE AGREEMENT (Agreement) TERMS AND CONDITIONS
1. Water/Coffee Delivery and Dispenser Rental. "Customer," "you," and "your" mean the entity named in Section 1 of the front page of this Agreement. "We," "us," and "our" mean DSS. We will provide the products and services described in Section 4 on the front page of this Agreement on the terms and conditions set out in this Agreement. Bottles, dispensers and equipment are our property, and payments do not apply toward the purchase of the dispenser or equipment. You will agree to follow our ordering and delivery procedures and take good care of all bottles, dispensers and equipment in your possession. You will not permit anyone other than us to repair or alter dispensers or equipment without our consent in writing.
2. Term/Cancellation. You may cancel this Agreement at any time without termination fee by providing DSS with notice of cancellation; such cancellation will take effect at either the end of the next full billing period or upon retrieval of all equipment. You must pay for all products and services ordered and received, and all applicable fees, through the end of the billing period in which the cancellation becomes effective. Within fourteen (14) days following any cancellation of this Agreement, you agree to return all bottles, dispensers and equipment in good condition, normal wear and tear excepted, to your Route Sales Representative.
3. Payments. You will pay us for (i) all products, services and equipment ordered under this Agreement, plus applicable tax, and (ii) the dispenser rental fee, plus applicable tax, and (iii) all other fees and charges as provided in this Agreement. These amounts are due by the date specified on each invoice. If you choose to pay by credit or debit card, you authorize us to automatically withdraw payment for service on a recurring basis, and to place a $50 refundable hold charge against your credit or debit card account. You may request to change your method of payment by providing written notice to DSS Customer Service. Subject to DS Services credit standards.
4. Fees. You also agree to pay the following fees: a late fee in an amount up to the maximum allowable by law will be charged for any payment which is past the payment due date (Maryland customers will be charged a late fee of 1.5% of the amount in default); a returned check/debit card fee of $25 for any check or debit card that is returned unpaid; a replacement fee for any dispenser, coffee equipment, or related equipment that is lost or damaged while in your possession, normal wear and tear excepted; a bottle deposit in the amount set forth on the front page of this Agreement, which is refundable, subject to the return of empty bottles in good condition, normal wear and tear excepted. We reserve the right to charge a variable Energy Surcharge per billing period, based on the Monthly U.S. Average On-Road Diesel Price as published by the U.S. Department of Energy, Energy Information Administration. For details, go to http://www.water.com/energysurcharge.
We reserve the right to charge a fee for each invoice or other statement that we print and mail to you. We recommend that you sign-up to receive invoices from us in electronic form (what we call “e-Invoice”) to avoid incurring these fees for paper statements. For more information on signing up for e-Invoice, visit https://www.water.com/einvoice
5. Default. You will be in default of this Agreement if you fail to make a payment when due or fail to comply with any other term of this Agreement. If you are in default, and do not cure the default within the time period specified in our notice, we may cancel this Agreement. In the event of an uncured default, we also reserve the right to cease delivery of bottled water and/or coffee and you agree to immediately return the dispenser, equipment and bottles to the Route Sales Representative. You agree to pay all costs, including attorneys’ fees and collection costs, incurred by us in connection with your default or the exercise of our remedies, to the maximum extent permitted by law.
6. Liability. DSS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES UNDER THIS AGREEMENT. Our total liability shall be limited to repairing or replacing defective bottles, dispensers and equipment delivered by us to you. Under no circumstances shall we be liable to you or any other party for any monetary damages in connection with this Agreement or the products or services provided by us. Any monetary liability imposed on us shall be limited to the lesser of actual damages or an amount equal to payments made by you in the three (3) billing periods preceding such assessment of liability. You assume the risk of loss, damage or destruction of all bottles, dispensers and equipment in your possession. You are responsible for any and all claims, damage, injury, or liability incurred by you arising from your use of bottles, dispensers, or equipment. You 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. You acknowledge that water/coffee can damage surfaces and that leaks may occur. You are responsible for selecting the location for placement of bottles, dispensers or equipment and have full responsibility for any damage or loss that occurs. You acknowledge that installation, use or removal of bottles, dispensers or equipment is your responsibility and may change your personal property, home or office. All filtration equipment is intended to be used to improve the quality of safe and potable, non-infectious, non-polluted drinking water that meets the Environmental Protection Agency standards for municipal water. You acknowledge that proper cleaning and maintenance of bottles, dispensers or equipment (including filtration equipment) is your responsibility and that failure to properly clean and maintain such equipment may lead to personal injury. We are not responsible or liable for any costs, expenses, claims or other liability related to any damage, loss or change to your personal property, home or office, or for any personal injury to you or any other person, resulting from the installation, maintenance, use or removal of bottles, dispensers or equipment (including filtration equipment). DSS shall not be liable to you for any damage, loss or non-performance caused by government action, war, fire, explosion, flood, strike, lockout, embargo, act of God, or any similar cause beyond the control of DSS.
7. Notices. All notices must be in writing and delivered by U.S. mail, certified mail or personal delivery or facsimile with written confirmation of receipt to the Customer address and to DSS at the address shown on the front of this Agreement. You agree to notify DSS promptly of a change in your address.
8. Dispute Resolution. If there is any dispute, controversy or claim which arises out of or relates to the Agreement or the provision of the services by DSS, you agree to resolve such dispute by binding arbitration in accordance with the Federal Arbitration Act. You understand and acknowledge that by agreeing to binding arbitration, you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, you understand and agree that all disputes will be resolved before a neutral arbitrator, whose award (decision) will be binding and final, except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award. You will not be responsible for any arbitration fees that exceed the fees you would have incurred if the dispute had been brought in court. CLASS ACTION WAIVER. We each agree that any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated, private attorney general, or representative action.
9. Personal Information. You agree that DSS may use the Customer information disclosed in Section 1 on the front page of this Agreement to improve our products and service to you. You agree that DSS may use your customer information to contact you and deliver information to you that may be targeted to your interests, such as special product and service offerings. If you do not wish to receive these communications, or if you have questions regarding DSS’s use of your personal information, contact Customer Service by e-mail at email@example.com or by calling 1-800-492-8377.
10. General. We may change the terms of this Agreement at any time, upon prior written notice to you. If you do not consent to the change, you will notify us to cancel your service in accordance with this Agreement. The terms of this Agreement may only be waived or amended in writing. Failure or delay in exercising any right will not be a waiver. We may assign this Agreement and any of its rights under it 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 IS GOVERNED BY THE LAWS OF THE STATE OF GEORGIA