Updated: August 08, 2023
These Terms and Conditions and Service Agreement & Equipment Lease (collectively, the “Agreement”) between the entity/person named in the Agreement (“Customer,” “you,” and “your”) and Aquaterra Corporation 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. Cancellation Rights: This agreement is for a monthly term that renews automatically for an indefinite period until cancellation by either party. You may cancel this Agreement at any time without penalty by (a) delivering or mailing a signed and dated Notice of Cancellation form to Primo Customer Care, 1200 Britannia Road, Mississauga, ON, L4W 4T5; or (b) notifying Primo via email (at email@example.com), online (at https://www.aquaterracorp.ca/), or by telephone (1-877-442-7873). Your cancellation will take effect at the end of the next full billing period. 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.Residential consumers may have additional statutory cancellation rights, including for those entering into direct (e.g. door-to-door) agreements as set out at the end of this Agreement.
3. Return of Equipment: If this Agreement is 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 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) all payments required under the Service Order Form for the lease of 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. Service Fees: You agree to pay the following fees and charges. 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 Cheque Fee - A fee per returned cheque; Rejected Credit Fee - A fee per rejected credit card payment; Credit Card Surcharge – A percentage surcharge for use of a credit card (except where prohibited by law); Delivery Fee - A feeper delivery; Paper Billing Fee - A fee for paper billing per invoice. You have signed up to receive electronic invoices (“e-Invoice”) and pay electronically. If your credit card is cancelled, a charge is rejected, the amounts owed cannot be processed, or Primo is otherwise required to send you a paper invoice, we will assess this fee. You may avoid this fee by keeping your credit or debit card, bank account or other electronic billing information updated and accurate; 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 Payment Method: By signing this Agreement and providing your payment method 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 payment method on file with Primo, until such amounts are paid in full. You agree that any third-party payment processor may accept this Agreement as your authorization to make payment. If you provide a credit card as form of payment, you will be subject to the Credit Card Surcharge. You may avoid this surcharge by paying by debit card, ACH, or Electronic Funds Transfer. You may change your payment information or withdraw your authorization by submitting your request by mail (to Primo Customer Care, 1200 Britannia Road, Mississauga, ON, L4W 4T5), by telephone (1-877-442-7873), or online (at https://www.aquaterracorp.ca/). By providing your payment method information, you authorize Primo to place an initial $50 hold charge or pre-authorization against your payment method which will be released within 30 days.
7. Leases: If Primo Equipment is leased to residential consumers, the following additional terms apply to the Agreement. This is an open-ended lease for a monthly term that renews automatically for an indefinite period until cancellation by either party, with no purchase option or residual obligation. Certain Charges and Costs – There are additional charges and costs that may apply to your lease of Primo Equipment as set out in the Service Agreement. Warranty – The Primo Equipment will work for the term of the Agreement.
8. 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.
10. Consent to be Contacted: You agree that Primo (and others on its behalf) may send you 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.
11. 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. You agree to pay all such sums and all other damages or sums you may owe 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, incurred by us in connection with your Default or the exercise of Primo’s remedies, to the maximum extent permitted by law.
12. 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.
13. Liabilities. 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. PRIMO SHALL NOT BE LIABLE IF CERTAIN ORDERING, PAYMENT, OR OTHER ONLINE SERVICES ARE TEMPORARILY UNAVAILABLE TO CUSTOMER DUE TO AN OUTAGE OR OTHER LACK OF CONNECTIVITY WITH THIRD-PARTY VENDORS. 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 OR ATTORNEYS’ FEES AND COSTS. THESE LIMITATIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. 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.
15. 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, to the greatest extent permitted by applicable law, all Disputes shall be submitted to final and binding arbitration, without a right of appeal. The arbitration shall be conducted in Toronto, Ontario in English. The arbitration shall be conducted by a single arbitrator who shall be agreed upon by all parties to the arbitration or, failing such agreement, the arbitrator shall be appointed by the International Centre for Dispute Resolution, acting only as appointing authority, with the fees of the appointing authority to be initially paid by Primo but may be reimbursed to Primo by the arbitrator in the award. The parties to the arbitration will equally share the costs of the arbitrator and each party shall bear its own costs involved in preparing and presenting its case during the course of the arbitration, subject to the arbitrator in the award allocating all or part of such costs to the prevailing party. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration without the prior written consent of the other party.“Disputes” means any claim or controversy arising from or relating to this Agreement and this provision agreeing to arbitrate, including any question regarding each of their existence, interpretation, enforcement, validity, applicability, breach or termination, or the relationship created by 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. 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 OR OTHER REPRESENTATIVE ACTION. This dispute resolution provision shall survive the cancellation or termination of the Agreement.
16. 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. (The following sentence is not applicable to Quebec consumers.) THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
17. English Language. It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.