JACUZZI BRANDS, LLC

SMARTTUB

TERMS OF USE

Last Updated: September 8, 2023

1.              Acceptance of the Terms of Use.

By accessing or using the Internet-connected spas feature the SmartTub™ technology (“SmartTub”), offered by Jacuzzi Brands, LLC (“Jacuzzi,” “we,” “us” or “our”), including through your connectivity to, and use of, the applicable mobile application (the “Mobile Application” or “App”), collectively referred to as the “Services”, you (the User”, “your” or you”) confirm that you have read, understand and agree to be bound by these terms of use (“Terms of Use” or “Terms”).  Please read the Terms of Use carefully and print a copy for your records.

IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE THE SERVICES OR PRODUCTS.

YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS CONTAIN SUBSCRIPTION SERVICES THAT CONTEMPLATE AUTOMATIC RENEWAL FOR SUBSCRIPTIONS, AND ASSOCIATED AUTOMATIC CHARGING OF YOUR SELECTED PAYMENT METHOD, AS FURTHER DESCRIBED IN SECTION 3 (E) BELOW.

PLEASE BE AWARE THAT SECTION 21 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND JACUZZI HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST JACUZZI TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 21 OF THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST JACUZZI ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 21 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 21 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

2.              Changes to these Terms of Use.

By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, We may notify you at the email address provided to us or by a posting in the Mobile Application or Website in the event that we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, in order to continue using the Services.

3.              SmartTub Services.

(a)            SmartTub Services. These SmartTub services are intended for use by residents of the United States and Canada (the “Target Countries”). You agree that your use of the SmartTub services will comply with all applicable local, state, provincial, national and international laws, rules and regulations. To the fullest extent permissible under applicable law, Jacuzzi accepts no responsibility or liability for any loss or damage caused by your access or use of the SmartTub services outside of the Target Countries.

(b)           Account Registration. To use certain SmartTub products and services you must register for a user Account (the “Account”) through the App. To be eligible for an Account, you must: (i) be a legal resident of the United States or Canada; (ii) be at least 18 years of age at time that you register; (iii) have an active, valid e-mail address; and (iv) provide certain information about yourself as prompted through the registration process. By registering for an Account and using the SmartTub services, you consent to receiving electronic communications from Jacuzzi relating to your Account. Your Account will remain active unless and until you choose to cancel it or we terminate it.

(c)            User Responsibilities. When you register or provide any information in connection with your Account, you agree to provide accurate, current, and complete information, and to promptly update this information to maintain its accuracy. You further agree that you will not provide any false personal information or create an Account for anyone other than yourself without Jacuzzi’s express prior written consent. You are responsible for maintaining the confidentiality of any login information associated with your Account, including any password or username, and you are responsible for all activities that occur under your login information and Account. You agree to use “strong” passwords (meaning passwords that use a combination of lower case and upper-case letters, numbers and symbols) in connection with your Account. You further agree to immediately notify Jacuzzi if you suspect any unauthorized use of your login information, Account, or any other breach of security.

(d)           Modification or Discontinuation of the SmartTub Services. Jacuzzi reserves the right to modify or discontinue, temporarily or permanently, SmartTub, or any features or portions thereof without prior notice. You agree that Jacuzzi will not be liable for any modification, suspension or discontinuance of SmartTub, or any part thereof.

(e)            Subscription and Automatic Renewal; SmartTub Sensors and Hardware. You acknowledge and agree that the SmartTub services require you to purchase a cellular subsection, in addition to the upgrade subscription after your free trial ends, as further described below. Jacuzzi offers a hardware kit for SmartTub (the “Kit”), as further described herein. If you buy this Kit and have an existing SmartTub cellular subscription, you will receive the upgraded service for "free".  Upon the next renewal of your existing subscription, you will be required to buy a cellular + enhanced monitoring subscription in order for your Kit to continue to communicate with the internet and send you alerts. The first twelve (12) months of the subscription service relating to the Kit is included in the purchase price of the SmartTub device. After the initial twelve (12) month, free subscription, you will be prompted to purchase a 1, 3 or 5 year subscription in order to continue using the Kit and benefits thereof.  The subscription will continue to renewal for the applicable renewal term unless you affirmatively go into your Account and cancel your subscription. You are responsible for all subscription and recurring fees unless and until you affirmatively cancel your subscription. Additionally, you acknowledge and agree that payments are processed via Jacuzzi’s third party payment provider (e.g., Shopify) and such payments will be made directly between you and the respective third party payment provider. Accordingly, you acknowledge and agree that your payment may be subject to separate terms of use of the applicable third party payment provider, and that you must comply with those respective third party terms. Jacuzzi shall not have any liability for use of, or interaction with, the applicable third party payment provider. The enhanced monitoring will add $13 to a current annual subscription of $36 for a total of $49 per year. You understand and agree that these charges are required for your use of the Kit and will be applied automatically to your selected payment method unless you elect to cancel the automatic renewal prior to such renewal. You further acknowledge and agree that you must comply with the user manual and all applicable instructions for the Kit as set forth in the box that the Kit is provided in. You understand and agree that you are liable and responsible for installing your Kit and for any loss or damage resulting from such installation.

4.              SmartTub Installation Instructions.

SmartTub® Wireless Sensor Onboarding Instructions

Please use these instructions and the accompanying videos supplied within the SmartTub®App to onboard your new sensors with the SmartTub® system installed on your spa.

A Cellular and Enhanced Monitoring subscription is required to use sensors and monitor their data. Customers who have an active cellular subscription, will temporarily receive this Enhanced Monitoring at no additional charge. Upon expiration of the current active Cellular subscription, a new Cellular and Enhanced Monitoring subscription will be required to continue. Or customers can drop back to the simple Cellular Subscription without the Enhanced Monitoring. Pricing and details are available in the “shop” section of your app.

Water Detection Sensor

You should find (Fig 1)

1 Water Detection Sensor with remote detector

1 Sensor holder

 

Sensor Onboarding

a.   Open the latest SmartTub® Application and navigate to Sensor Menu (Fig 2)

b.   Press the Water Sensor Setup button (Fig 3).

c.   Take the Water Sensor case with the product label and pull battery tab (Fig 4).

d.   From the offered list of devices, select the device you wish to onboard.

e.   After the Water Detection Sensor is connected, test its function by touching across the metal tabs with a small amount of water on your finger.

f.    Attach the Water Detection Sensor holder to the frame of your spa with 2 screws. Place the labeled sensor portion into this holder (Fig 5).

g.   Finally, place the Water Detection Sensor near the bottom of the pump area on the base of the Spa frame in one of the following orientations Fig 6).


Option 1: Flood Detection (metal side up): Will detect presence of large water amount that can potentially damage expensive parts such as pumps

 

Option 2: Preemptive Protection (metal side down, shown): Will detect water intrusion prior to a major issue.

Fill-Drain Sensor

 

You should find (Fig 7)

1 Fill-Drain Sensor with 2 remote detectors

1 Sensor Holder

Sensor Onboarding

a.   Open the latest SmartTub® Application, navigate to the Sensor Tab, and Click on the Fill-Drain Sensor (Fig 8).

b.   Take the Fill-Drain Sensor case with the product label and pull battery tab (Fig 9).

c.   From the offered list of devices, select the device you wish to onboard.

d.   After you have successfully selected the Device ID, you will need to perform the Testing and Mounting processes. Start with a fully filled tub. Fill your spa if needed. In this Testing and Mounting process, the SmartTub® application will guide you through checking out each portion of the sensor and guide you on their correct placement underneath the acrylic spa body holding the water. The testing process should take less than 10 minutes.

Note: Do not remove the sticky backing until instructed to do so.

 

Testing

a.   Wait for the SmartTub® application to say Ready to test the 1st sensor. Take either of the remote sensor heads and press against tub firmly and hold, wait for SmartTub® application to say OK, 1st Sensor. Set that sensor head aside and click continue.

b.   Wait for SmartTub® application to say Ready to test the 2nd sensor. Take 2nd remote sen­sor head and press against tub firmly and hold, wait for SmartTub® application to say OK, 2nd Sensor. Set that sensor head aside and click continue.

 

Mounting

a.   Wait for the SmartTub® application to say READY to mount the Drain Sensor (Bottom). Now take either remote sensor head, remove the sticky backing and firmly mount it  approximately 4” from the spa bottom. Hold for 15 seconds (Fig 10). See Drain sensor has been mounted message and Click Continue.

b.   Wait for the SmartTub® application to say OK, Ready to mount the Fill Sensor (Top). Take the 2nd remote sensor, remove the sticky backing and firmly mount it approximately 8” from the top of the spa (Fig 10). Hold for 15 seconds. See Fill sensor has been mounted message and Click Continue.

c.   Attach the Fill-Drain Sensor holder to the frame of your spa. Place the labeled sensor portion into this holder (Figs 11 & 12).

 

Cover Sensor

You should find

1 Cover Sensor with Bracket (Fig 13)

1 Magnet with Bracket (Fig 14)

Sensor Onboarding

a.   Open the latest SmartTub®Application and navigate to Sensor Tab.

b.   Take the Cover Sensor in your hand. Press the button on the middle of the Cover Sensor to turn the sensor ON (Fig 15).

c.   You should now see this screen in Fig 16. Notice how the Cover Sensor          
says Setup.

d.   Press the Cover Sensor Icon.

e.   From the offered list of devices, select the device you wish to onboard.

f.    To test, bring the Cover Sensor and Magnet together and apart.

g.   You’ll see behavior like the screens in Figs 17 & 18 as you bring the magnet near or away from the Cover Sensor.

 

 

 

Cover Installation

Attaching the Cover Sensor with bracket and Magnet with bracket to your Cover.

a.   Take your cover and where it folds to lay flat, bend open the cover. Unzip each side of the cover fabric to reveal opposing corners of your cover. Insert the assembled Sensor with Bracket on one side (Fig 19).

b.   Opposite of the Sensor with Bracket, insert the assembled Magnet with Bracket (Fig 20).

c.   Zip up each side of the cover fabric. Do not force the zipper closed.

d.   Test the cover sensor with your SmartTub®Application as you open the cover of your spa.

Additional Requirements:

Requires active SmartTub® “Cellular and Enhanced Monitoring” subscription. For existing subscribers, your sensors will function immediately upon onboarding for the remainder of your existing SmartTub® “Cellular Only” subscription. Upon your next renewal, you will need to purchase either the “Cellular and Enhanced Monitoring” service or “Cellular Only” service.

 

Only compatible with Bluetooth Low Energy (BLE) enabled SmartTub® devices. For North America users the SmartTub® compatible device bar code starts with prefix P007; For International users the SmartTub® compatible device bar code starts with prefix P034.

 

 

5.              SmartTub Warranty. Your SmartTub product comes with the limited product warranty (the “Product Warranty”) that is provided to you at the point of purchase. In order to take full advantage of your Product Warranty, please register it by visiting our Sundance® Spas Warranty Registration webpage “Sundance® Spas Warranty Registration” and Jacuzzi® Hot Tubs Warranty Registration “Jacuzzi® Hot Tubs Warranty Registration” and following the instructions to register your SmartTub product. The terms of the Product Warranty are incorporated into and made a part of these Terms. In the event of a conflict between these Terms and your Product Warranty, your Product Warranty controls. If you are unsure of your Product Warranty or need assistance, please contact our customer service help line at (800) 288-4002 with your model and serial number.

6.              SmartTub Product Installation. Subject to the terms of the applicable Product Warranty, Jacuzzi makes no representations or warranties regarding the performance of SmartTub if the SmartTub has been improperly installed. For more information, please visit https://www.sundancespassmarttub.com or https://www.jacuzzismarttub.com or contact our customer service help line at (866) 234-7727.

7.              Safety. If you use or rely on any services relating to the SmartTub as offered by Jacuzzi, you do so at your own risk. Please take caution when entering and exiting the spa, refrain from using electronic devices near water, and follow all warnings in the spa owner’s manual. Jacuzzi specifically disclaims all liability for injury resulting from your improper or negligent use of the SmartTub services or products. The SmartTub services and product are not intended to diagnose, treat, cure, or prevent any disease. Please consult a licensed physician if you have any medical or health related questions or concerns. IF YOU HAVE AN EMERGENCY CALL 911. DO NOT CALL COMPANY FOR A LIFE, SAFETY, OR MEDICAL EMERGENCY OR FOR ANY OTHER EMERGENCY SERVICES. RELIABILITY OF PRODUCT INFORMATION

8.              Reliability and Service Interruptions. SmartTub may provide you with information that is unique to the use or functionality of your SmartTub product and its connection to other users, products and services (“Your Product Information”). Your product information is provided “as is” and “as available.” While we will make reasonable efforts to ensure the reliability of Your Product Information, we cannot guarantee that that Your Product Information is up to date or correct. You acknowledge that SmartTub, including remote access and mobile notifications, is not error-free and may not always be 100% reliable or available. You understand that factors outside of Jacuzzi’s knowledge or control affect the reliability of Your Product Information. For example, Jacuzzi has no control over your access to a cellular network. Factors such as power outages, non-payment of applicable fees or charges, Internet/cellular access, repairs, equipment failure or unavailability, environmental conditions, disasters or emergencies (collectively, a “Service Interruption”) affect the reliability or accessibility of the SmartTub services. You understand that a Service Interruption will cause SmartTub to be unreliable, inaccessible or unavailable for the duration of the Service Interruption. Jacuzzi does not guarantee any specific period of uptime. You acknowledge that the SmartTub services may be suspended temporarily without notice to you for maintenance, repair, security, system failure or other circumstances. You agree that you will not be entitled to any refund, rebate, or credit for any suspension or interruption of the SmartTub services.

9.              Energy Usage or Savings. SmartTub may provide you with information that is unique to the energy usage of your SmartTub product. This information is an analysis of the energy usage of the SmartTub product at a given point in time based on sensors and software algorithms, and it is provided to you merely as tool for you to conduct your own assessment of your opportunity to save money on your energy bills. You acknowledge that actual energy consumption, savings and monetary benefits are dependent on factors outside of Jacuzzi’s knowledge or control. Check with your local utility company or actual usage. Unless otherwise stated in these Terms, Jacuzzi does not guarantee or promise any specific energy savings, reduction in energy bill, or any other such monetary benefits.

10.           System Requirements. The use of certain SmartTub products and features is dependent upon your use of a computer, tablet and/or supported mobile device with adequate software and access to a cellular network and/or Internet access (the “Equipment”). The maintenance and security of your Equipment may affect the performance of your SmartTub and you acknowledge and agree that it is your responsibility to ensure the functionality of your Equipment. From time-to-time Jacuzzi may develop bug fixes, patches, updates, upgrades and other such modifications to improve or secure the performance of the Smart Tub services (the “Software Updates”). You acknowledge and agree that these Software Updates may be automatically installed on your Equipment without providing any additional notice to you and without receiving any additional consent from you. You further acknowledge that you may be required to install Software Updates to use certain features or services of SmartTub and you agree to promptly install any Software Updates that Jacuzzi provides. If you do not want Software Updates, your remedy is to terminate your Account and cease using the SmartTub services. If you do not terminate your Account, you may continue to receive automatic Software Updates. You acknowledge that the availability of the SmartTub services is dependent on (i) your Equipment and its connection to the Internet; (ii) your Internet Service Provider (“ISP”); and (iii) your mobile device carrier (“Carrier”). You acknowledge and agree that it is your responsibility to comply with all applicable agreements, terms, conditions or policies between you and your ISP and Carrier and it is your responsibility to pay all fees charged by your ISP and Carrier in connection with your use of the SmartTub services. You acknowledge and agree that when connecting your device to the Smart Tub services, you are sharing the location of your device(s) and Jacuzzi may use the location information in accordance with its Privacy Policy.

11.           Jacuzzi-Authorized Dealers. Jacuzzi is a global company that works with a network of independently owned and operated dealers. Only authorized Jacuzzi dealers are permitted to sell or provide the SmartTub products and services. You agree that by creating an Account or by providing your information to Jacuzzi or to a Jacuzzi authorized dealer in connection with SmartTub services, Jacuzzi may share your information with other Jacuzzi affiliated companies. To locate an authorized Sundance® Spas dealer near you, please visit Find A Dealer Find A Dealer or call Sundance Customer Service at: (800) 883-7727. To locate an authorized Jacuzzi® dealer near you, please visit Find A Dealer Find A Dealer or call Jacuzzi Customer Service at: (866) 234-7727. You may only connect to the SmartTub services (i) using a product that is manufactured, distributed or sold by SmartTub itself, or though Sundance® Spas/Jacuzzi® authorized dealers; (ii) using the Sundance®/Jacuzzi® App and related software, or approved third-party applications, software or devices; or (iii) via the official Sundance® Spas/Jacuzzi® websites. You may not connect to the SmartTub services with any product that is not manufactured, distributed or sold by Jacuzzi or any of its authorized dealers, including, but not limited to, counterfeit products, applications, software or products that otherwise resemble or purport to originate from Jacuzzi, or other unauthorized third party connections (“Unauthorized Connection”). Any Unauthorized Connection or attempt to make an Unauthorized Connection may result in the immediate termination of your access to the SmartTub services and/or your Account.

12.           Billing and Diagnostic Features.

(a)            The diagnostic features of the SmartTub product enable Jacuzzi and its authorized dealers in some situations to identify issues which may impair optimal functioning of the SmartTub product and assist you with identifying the appropriate accessories, parts or services necessary to keep your Product in good operating order (“Diagnostic Services”). All SmartTub spas are sold with a one (1) year free subscription (the “Trial Period”) to certain remote monitoring and controls of the hot tub (“Remote Services”). The data collected by the Remote Services/Diagnostic Services include: water temperature, spa settings and operating state, repair or maintenance data, frequency of use and other similar information related to the functioning and use of the SmartTub product. In order to provide accurate information and real time alerts, Jacuzzi and its authorized dealers have the capability to run diagnostic tests remotely without requiring any action from you. The SmartTub product will begin recording diagnostic data and reporting it to Jacuzzi via a direct cellular connection when the SmartTub product is connected to a power source. Once your Trial Period has expired the Remote Services and Diagnostic Services will cease until and unless you renew your Subscription through your Account. If your Subscription to the Remote services is not renewed or if it is terminated, the SmartTub product will cease saving or transmitting diagnostic data to Jacuzzi. To learn about how to opt-out of the SmartTub product’s collection and use of diagnostic data please review our Privacy Policy. While some portions of Company’s Services are accessible free of charge, we bill annual fees to access and use certain functionalities of the Services such as Diagnostic Services (“Subscription”). The subscription Trial Period for new SmartTub™ spas automatically terminates one year from the date that you activate it through the App. If you do not renew your Subscription, you will no longer have access to the Diagnostic Services or other Service features which require a Subscription. You acknowledge that late payments or your delay in renewing your Subscription may result in an interruption of access to the Diagnostic Services or other features available through Subscription.

(b)           Your Subscription must be renewed annually, at the then applicable rate, in order to continue to access the Services available with a Subscription. We reserve the right to adjust pricing for our SmartTub services at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided in these Terms, any price changes affecting your use of the SmartTub Services will take effect following notice sent to the email address connected to your Account. You are able to pay for certain SmartTub services through third party payment processors such as PayPal, Amazon Pay, Apple Pay, Stripe and Shopify (the “Payment Processing Services”). Payments made through the Payment Processing Services are subject to the agreement and terms of the applicable third party payment processor (the “Payment Processing Services Agreement”). You understand that it is your responsibility to determine the applicable agreement or terms that govern your use of Payment Processing Services offered by a third party. By agreeing to the Terms and using the Payment Processing Services available through Jacuzzi’s services, you agree to be bound by the applicable Payment Processing Services agreement and any modifications which may be made by the applicable Payment Processing Service provider. You further agree that you will provide Jacuzzi accurate and complete information about you and you authorize Jacuzzi to share it, and the transaction information related to your use of the SmartTub services, with the applicable Payment Processing Service to facilitate your transaction. We assume no liability or responsibility for any payments you may make through the Payment Processing Services, and all such payments are non-refundable.

13.           SmartTub Customer Service. If you need assistance or have questions about the Sundance® Spas Services or your Account, you may contact us by email, telephone, or postal mail at: sundancespas.app@sundancespas.com or (800) 883-7727 or Sundance Spas, Inc., 13925 City Center Drive, Suite 200, Chino Hills, California 91709. If you need assistance or have questions about the Jacuzzi® SmartTub services or your Account, you may contact us by email, telephone, or postal mail at: jacuzzi.app@jacuzzi.com or (866) 234-7727 or Jacuzzi Hot Tubs, 13925 City Center Drive, Suite 200, Chino Hills, California 91709. You acknowledge that by contacting us we may send you a communication related to your request.

14.           Disclaimers.

(a)            Jacuzzi is not responsible for the conduct, whether online or offline, of any user of the SmartTub services. We do not control or vet user generated content for accuracy nor do we assume any responsibility for the accuracy or reliability of any information provided by users whether on the SmartTub services or offline. Jacuzzi does not assume and expressly disclaims any liability that may result from the use of information that may be provided through the SmartTub services or user Accounts. You hereby expressly agree not to hold Jacuzzi, or its members, officers, directors, shareholders, employees, or other affiliates (collectively the “Jacuzzi Parties”) liable for the actions or inactions of any Jacuzzi Party or other third party for any information, instruction, advice, or services which originated through the SmartTub services or user Accounts, and the Jacuzzi Parties expressly disclaim any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.

(b)           You acknowledge that the SmartTub product and related services do not come without the risk of injury or harm, including, but not limited to, flooding, electric shock, or drowning. With this in mind, you accept full responsibility for your own safety and YOU EXPRESSLY ASSUME ALL RISK OF LOSS, PROPERTY DAMAGE, OR PERSONAL INJURY, INCLUDING DEATH, WHETHER FORESEEN OR UNFORESEEN, that you may sustain as a result of your use of the SmartTub products and related services, including damage or loss resulting from the negligence of Jacuzzi or its employees or authorized agents. You understand and have been advised that you may have rights under CALIFORNIA CIVIL CODE SECTION 1542 which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” YOU EXPRESSLY WAIVE ANY RIGHTS CONFERRED UNDER THIS CODE SECTION and agree that this agreement shall apply to all unknown or unanticipated risks associated with the Jacuzzi products and related services as well as known or anticipated risks.

(c)            YOU AGREE THAT YOUR USE OF THE SMARTTUB SERVICES IS AT YOUR OWN RISK. THE SMARTTUB SERVICES AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SMARTTUB SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. JACUZZI DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SMARTTUB SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE. YOU AGREE THAT JACUZZI IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS. BECAUSE THE LAWS OF SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED OR STATUTORY WARRANTIES, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

15.           Consent to be Contacted.

To the extent required by applicable law, we ensure we make the proper disclosures and obtain consumer consent when collecting your contact information.

16.           Intellectual Property.

(a)            Trademarks. You acknowledge and agree that the SmartTub® logos and marks, and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress, and any other proprietary materials depicted in connection with our Services are owned solely and exclusively by Jacuzzi, and may not be used commercially by you or any third party without Jacuzzi’s express prior written consent. Jacuzzi’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Jacuzzi.

(b)           Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”), provided by you to us through the Services are non-confidential and shall become the sole property of Jacuzzi. Jacuzzi shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

17.           Mobile App; App Store.

(a)            If you have elected to download our App, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the App on any mobile device that you own or control that such App is authorized to be operated on (as determined by us in our sole discretion) and is permitted by this Section 17. The App is licensed, not sold, to you for use only under the terms of this Terms of Use. Jacuzzi reserves all rights, title and interest not expressly granted to you. Nothing herein allows you to use the App on a device that you do not own or are not authorized to control.

(b)           Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play® store or the Apple’s® App Store® (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of this Section 17 (App Store). You acknowledge that these Terms of Use are between you and us and not with the owner or operator of the App Store Sourced Application (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless or cellular network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:

(i)             Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.

(ii)           You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(iii)         In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Jacuzzi and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Jacuzzi.

(iv)          You and we acknowledge that, as between Jacuzzi and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

(v)           You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Jacuzzi and the App Store Owner, Jacuzzi, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.

(vi)          You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of these Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms of Use, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

(c)            Without limiting any other terms in these Terms of Use, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

18.           Limitation of Certain Damage Types.

EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL JACUZZI OR ANY OF ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE THE LAWS OF SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, LOSSES OR LIABILITY, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

19.           Limitation of Liability Amount.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SMARTTUB PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $20. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SMARTTUB PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.

NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.

20.           Disputes, Governing Law, Venue, and Jurisdiction.

By using the Services, you agree that these Terms of Use shall be governed by the laws of the State of California, without regard to its conflict of law provisions.

For any cause of action initiated against Jacuzzi relating to these Terms of Use, you and Jacuzzi agree to submit to the exclusive and personal jurisdiction of the courts located in California.

Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.

21.           Arbitration Agreement & Dispute Resolution.

(a)            Please read this Arbitration Agreement carefully. It is part of your contract with Jacuzzi and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(b)           Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Jacuzzi will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Jacuzzi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST Jacuzzi ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS.  SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED.  BUT IF YOU AGREE TO ARBITRATION WITH Jacuzzi, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS.  INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Jacuzzi IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

(c)            Arbitration Rules and Forum.  Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the State of California before three (3) arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, Jacuzzi will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

(d)           Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Jacuzzi.  The dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute.  The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use.  The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding on you and Jacuzzi.

(e)            Waiver of Jury Trial.  YOU AND Jacuzzi EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL.  You and Jacuzzi are instead electing to have claims and disputes resolved by arbitration.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is limited.  In any litigation between you and Jacuzzi over whether to vacate or enforce an arbitration award, you and Jacuzzi waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.

(f)            Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.  CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Jacuzzi is entitled to arbitration.  Instead, all claims and disputes will then be resolved in a court as set forth in Section 20 (Disputes, Governing Law, Venue and Jurisdiction) above.

(g)           Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Jacuzzi can force the other to arbitrate. To opt out, you must notify Jacuzzi in writing no later than 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Jacuzzi username (if any), the email address you used to set up your Jacuzzi account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: privacy@jacuzzi.com. If you opt out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.

(h)           Exclusive Venue. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Jacuzzi agree that all claims and disputes arising out of or relating to these Terms of Use will be litigated exclusively in the applicable state or federal courts located in the State of California.

22.           Indemnity.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS JACUZZI AND ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, OR EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SMARTTUB SERVICES. JACUZZI RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.

23.           Survival. 

The following Sections survive the termination of these Terms of Use: 2, 3, and 6 through 23.