THIS AGREEMENT CONTAINS BOTH A MANDATORY INDIVIDUAL ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION. THESE PROVISIONS REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. BY ACCEPTING THESE TERMS, YOU EXPRESSLY AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, INCLUDING THE MANDATORY INDIVIDUAL ARBITRATION PROVISION AND THE CLASS ACTION/JURY TRIAL WAIVER PROVISION. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM AND MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE PLATFORM.
Copyrights, Trademarks, and Patents
All content on the Platform (including but not limited to graphics, drawings, design, text, software, selection, and arrangement) is protected by copyright laws in the United States and around the world. We grant you permission to use the Platform and its contents for your own personal use. You may not access, download, copy, modify, distribute, transmit, display, reproduce, publish, license, create derivative works from, transfer, or sell any part of the content or Platform for commercial purposes, whether on behalf of yourself or a third party.
All trademarks, service marks, and trade names are trademarks or registered trademarks of AQUA Inc . or other owners that have granted AQUA Corp. license to use such Marks.
The Platform may enable you and others to submit reviews, ratings, comments, photos, videos, or other content (“User Content”). You acknowledge that you are solely responsible for your User Content, your User Content is not confidential or proprietary to you, and others may access or use your User Content. You will only submit User Content if: you are the sole author and owner of all rights to the User Content or have all necessary permissions; your submission is in accordance with these Terms and any other guidance we provide on the Platform; and your submission complies with all applicable laws and regulations. We retain sole discretion to remove any User Content from our Platform for any reason.
You will not submit User Content that may cause injury to any person or entity; is false or misleading; infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights; violates anyone’s rights to privacy or publicity; violates any law or regulation; includes content or links to content that could be considered defamatory, libelous, knowingly false, fraudulent, indecent, violent, obscene, profane, hateful, racially or religiously biased, threatening, or harassing; is inconsistent with the safe and proper use of any AQUA product or service; or promotes commercial activities and/or sales without our prior written consent.
Other than your personal information (e.g., your name, address, and email address), you grant us and our authorized third-party affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable license to your User Content, including any username or social media handle you used when submitting the User Content. This includes the right to use, copy, modify, adapt, publish, translate, transform, create derivative works from, sell, and/or distribute your User Content. You acknowledge that all your User Content may be used and shared by us with third parties.
YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM, YOUR USER CONTENT, OTHERS’ USER CONTENT THAT YOU CHOOSE TO USE, AND ANY CONSEQUENCES THEREOF.
We welcome you to share User Content and information about our products and services through social media. When you use social media to share Platform content, you grant us the right to reproduce and publish your social media posting and to use the username / social media handle that you used when sharing the content. You are responsible for complying with the terms and conditions of social media platforms.
You may be required to register for an account to access certain Platform services or content. Your username and password are for your personal use only, and you are responsible for maintaining their confidentiality. You are also responsible for keeping your account information, including your email address, up to date. You agree to accept responsibility for all activities that occur under your account. We reserve the right, in our sole discretion, to terminate or suspend your account for any reason.
You may use the Platform or your Account only in compliance with these Terms and all applicable laws. You may not use the Platform in any manner that could harm AQAU, its affiliates, its brands, or any person or property. In addition, you must not:
violate or attempt to violate the security of the Platform;
access Platform data that is not intended for the public;
log on to a server or account which you are not authorized to access;
probe or test the vulnerability of the Platform, our servers, or our network;
attempt to interfere with network service, including through viruses, overloading, or crashing of network equipment;
take any action that imposes, or may impose, an unreasonably large load on our servers;
forge any data or communications;
impersonate any third party, AQUA, or a AQUA employee, or send unauthorized communications on our behalf;
reverse engineer, decompile or disassemble any software or portion of the Platform or use automated systems to scrape, harvest, copy or monitor any Platform content; or
attempt to bypass or circumvent any technology or measures we use (or that is used on our behalf) to protect, prevent or restrict access to the Platform.
Website and Content Subject to Change
While we try to maintain an error-free Platform, we do not guarantee that the Platform content is complete, current, or error-free (including content related to product availability, specifications, features, or prices). If we discover errors, we will make reasonable efforts to correct them. In some cases, product measurements and descriptions are approximate and provided only for ease of explanation or convenience. We try to display product colors as accurately as possible, but colors may appear differently on your screen.
Limitations on Purchases
We are not responsible for failure to fulfill orders due to causes beyond our control. We reserve the right to: (1) limit order quantities to reasonable amounts (in our sole discretion); (2) prohibit purchases on the Platform by retailers, distributors, or resellers; (3) discontinue or refuse to offer any product or service; (4) impose conditions on any discount, coupon or promotion; and/or (5) bar any user from completing a transaction.
You are responsible for complying with United States, Canada, and foreign export controls and for any violation of such controls, including any United States embargoes or other rules and regulations restricting exports. You represent that you are not: (1) located in, or a resident or a national of, any country subject to a government embargo or other restriction, or that has been designated by any government as a “terrorist supporting” country; or (2) on any government list of restricted end users.
Warranty Disclaimer & Limitation of Liability
THE PLATFORM — INCLUDING ALL OF ITS CONTENTS, INFORMATION, AND THE MANNER BY WHICH IT OPERATES — IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM, CONTENT, AND ANY PRODUCTS OR THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ANY WARRANTIES REGARDING THE ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF ANY INFORMATION OR CONTENT CONTAINED ON THE PLATFORM OR THE AVAILABILITY OF ANY PRODUCT OR RESULTS THAT YOU MAY OBTAIN THROUGH THE PLATFORM.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF AQUA, ITS HEIRS, SURVIVORS, REPRESENTATIVES, SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, PREDECESSORS IN INTERESTS, SUCCESSORS, ASSIGNS, AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS.
AQUA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED YOUR USE OF OR INABILITY TO USE THE PLATFORM, ITS CONTENT, OR FROM ANY PRODUCTS OR THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, OR UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF AQUA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, AQUA WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM OR FROM ANY PRODUCTS OR THIRD-PARTY SERVICES. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE ALSO MADE ON BEHALF OF THE AFFILIATED ENTITIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless AQUA and the Affiliated Entities against all claims, damages, losses, and expenses (including attorneys’ fees) arising out of: (1) your use of, or activities in connection with, the Platform (including all User Content); and (2) any violation or alleged violation of this Agreement by you.
READ THE FOLLOWING ARBITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS.
As used in this Arbitration provision and the subsequent Class Action Waiver provision, “You” and “Your” includes you, your heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, predecessors in interests, successors, and assigns.
This Arbitration Agreement is intended to be broadly interpreted. It applies to any and all claims, disputes, or controversies of any nature whatsoever that You may raise against AQUA and/or its Affiliated Entities, whether in contract, tort or otherwise, including but not limited to statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property, or equitable claims arising out of, relating to, or in connection with: the Platform, all content on the Platform, products sold or advertised on this Platform (including but not limited to the use, design, testing, manufacture, marketing, advertising, or labeling of any product advertised or purchased on this Platform), and these Terms (including any claims relating to the validity, scope, interpretation, breach or enforceability of these Terms) (all of which are collectively referred to herein as “Claims”).
You agree that you will assert any Claim against AQUA and/or the Affiliated Entities by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. To the extent there is any inconsistency between the terms of this Arbitration provision and the AAA Rules the provisions of this provision shall apply. The AAA Rules, forms and information are available online at www.adr.org, or can be obtained by calling the AAA at 1-800-778-7879. Unless AQUA and You agree otherwise, any arbitration hearing(s) will take place in the province or jurisdiction in which you reside or, in the case of residents of Quebec, the seat of arbitration will be Ontario.
In the event that any provision of this Arbitration provision or the Class Action Waiver provision is found to be invalid or unenforceable in a particular case or jurisdiction, that provision will be severable in that case or jurisdiction, as the case may be, without affecting the validity and enforceability of the remaining provisions of the Agreement, and shall not affect the validity and enforceability of the Agreement in other cases and jurisdictions.
In the event that You intend to commence an arbitration or a court proceeding, You must first notify AQUA by contacting Our Customer Experience Center at 1-866-698-2538 (U.S.) or 1-800-807-6777 (Canada) (“Notice”) and attempt to resolve Your Claim. If You and AQUA and/or the Affiliated Entities do not reach an agreement to resolve Your Claim within 30 days after Notice has been provided, either party may commence an arbitration proceeding in accordance with this Agreement.
We agree to pay Your filing, administration, service, case management, arbitrator and reasonable hearing fees. You may be ordered to reimburse us in whole or in part for any of the amount that We pay if the arbitrator or the court, as the case may be, finds that any of your Claims were filed for purposes of harassment or are frivolous.
Class Action Waiver
READ THE FOLLOWING CLASS ACTION WAIVER AGREEMENT CAREFULLY. IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES AS A MEMBER OF A CLASS.
EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, WHETHER BEFORE AN ARBITRATOR OR IN COURT, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT.You expressly waive any right you may have to bring or participate in a Claim as a class, collective or representative proceeding in court or before an arbitrator against AQUA and/or the Affiliated Entities. Further, unless both You and We agree in writing, the arbitrator may not consolidate Your claim with another person’s claim, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding anything herein, either party may bring an individual action in small claims court for disputes within that court’s jurisdiction. THIS SECTION NOT APPLICABLE TO RESIDENTS OF QUEBEC.
The Platform is intended for use within the United States of America and Canada. Claims about our products or services are limited to the United States and Canada, unless otherwise disclosed. The Platform is intended to promote solely products that are sold in the United States and Canada. We do not represent or warrant that the Platform is appropriate or available for use outside the United States and Canada.
Our Communications To You
We may communicate with you electronically, including by posting notices on the Platform or by responding to your e-mails. You agree that all agreements, notices, disclosures or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
For our U.S. customers, this Agreement is and shall be governed by and construed under the laws of the State of Delaware, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. For our Canadian customers, this Agreement is and shall be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without regard to its principles of conflicts of law, and regardless of your location.
If any provision of this Agreement is held unenforceable, that provision shall be considered amended in a manner that eliminates the unenforceability, and all other provisions shall remain effective as originally written.
Additional Terms May Apply
Depending on which of our products or services you use, additional terms may apply (“Additional Terms”). Additional Terms may also apply for promotions, sweepstakes, contest, giveaways, or similar programs. If these Terms are inconsistent with any Additional Terms, the Additional Terms will control.
From time to time, we may change these Terms. We reserve the right to make these changes without notice, though we will update the “Last Updated” line at the beginning of these Terms after each revision. You are responsible for regularly reviewing these Terms, and your continued use of the Platform following any changes indicates your acceptance of those changes.