SmartTub™ App Terms of Service
Last Modified June 22, 2018
IMPORTANT: PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CREATING AN ACCOUNT, ACCESSING OR USING THIS PRODUCT, SITE OR SERVICE YOU AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES AND PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CREATE AN ACCOUNT, OR USE THIS PRODUCT, SITE, OR MOBILE APPLICATION.
Sundance Spas, Inc./Jacuzzi Hot Tubs (“Company”) continues to innovate and are proud to offer Internet connected spas featuring the SmartTub™ technology (“SmartTub™”) to enhance the classic hot tub experience. SmartTub™ feature enables owners to remotely control on/off and temperature settings as well as monitor certain features such as energy usage and maintenance. This combines modern convenience with the classic Sundance® Spas and Jacuzzi® experience that you have come to know and love.
1. ACCEPTANCE OF TERMS
Company provides services through the sundancespas.com website for Sundance® Spas brand and jacuzzi.com website for Jacuzzi® brand (the “Websites”), through the SmartTub™ mobile app (the “App”) and through the cellular connected SmartTub™ feature on the spa (the “Product” or “Products”) (collectively, the “Services”).
These Terms of Service (the “Terms” or the “Agreement”) are between you (“user”, or “you”) and Company (“Company”, “we”, or “us”) and describe the terms and conditions that govern your use of the Services. The Terms apply to your use of all or part of the App, Products, or Websites, and any other site or online service where these Terms are posted. You must agree to these Terms, and all terms incorporated by reference, to create an Account (as described below) and to access or use any part of the Company Services. If you do not agree with these Terms, do not create an Account or use the Company Services.
1.1 MODIFICATION OF TERMS
From time to time Company may need to make changes to this Agreement and we encourage you to review these Terms regularly. Any changes or modifications will be effective immediately upon posting the revisions to the Services. Your continued use of the Services means that you accept all modified Terms. If material changes to these Terms are made, we will notify you by posting a notice on the Services, posting an updated version of these Terms or by sending you notice by email. Notwithstanding the foregoing, additional terms may apply to certain products or services. In the event of a conflict between these Terms and any additional terms, the new, revised or additional terms will control.
2. USE OF SERVICES
These Services are intended for use by residents of the United States and Canada (the “Target Countries”). You agree that your use of the Services will be in compliance with all applicable local, state, provincial, national and international laws, rules and regulations. To the fullest extent permissible under applicable law, Company accepts no responsibility or liability for any loss or damage caused by your access or use of Company Services outside of the Target Countries.
2.1 AGE RESTRICTION
You must be 18 years or older to use the App. Our Services are not directed at or intended for use by anyone under the age of 18. If we determine that a user is under age 18, we may immediately terminate the associated Account (as described below) and delete any information provided.
2.2 ACCOUNT REGISTRATION
To use certain Products and Services you must register for a user Account (the “Account”) through the App. To be eligible for an Account, you must: (1) be a legal resident of the United States or Canada; (2) be at least 18 years of age at time that you register; (3) have an active, valid e-mail address; and (5) provide certain information about yourself as prompted through the registration process.
By registering for an Account and using the Services, you consent to receiving electronic communications from Company relating to your Account. Your Account will remain active unless and until you choose to cancel it or we terminate it.
2.3 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 Company’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 Company if you suspect any unauthorized use of your login information, Account, or any other breach of security.
2.4 MODIFICATION OR DISCONTINUATION OF THE SERVICES
Company reserves the right to modify or discontinue, temporarily or permanently, the Services, or any features or portions thereof without prior notice. You agree that Company will not be liable for any modification, suspension or discontinuance of the Services, or any part thereof.
2.5 PRODUCT WARRANTY
Your Company 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 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.
2.6 PRODUCT INSTALLATION
Subject to the terms of the applicable Product Warranty, Company makes no representations or warranties regarding the performance of the Services if the applicable Company Product has been improperly installed. For more information, please visit https://www.sundancespassmarttub.com or https://www.jacuzzismarttub.comor contact our Customer Service help line at (866) 234-7727.
If you use or rely on the Company Services, 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. Company specifically disclaims all liability for injury resulting from your improper or negligent use of the Services or Products.
Company Products and Services 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, SAFTEY, OR MEDICAL EMERGENCY OR FOR ANY OTHER EMERGENCY SERVICES.
3. PRODUCT INFORMATION SERVICES
3.1 RELIABILITY OF PRODUCT INFORMATION
The Services may provide you with information that is unique to the use or functionality of your 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 the Services, including remote access and mobile notifications, are not error-free and may not always be 100% reliable or available. You understand that factors outside of Company’s knowledge or control affect the reliability of Your Product Information. For example, Company 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 Company Services. You understand that a Service Interruption will cause the Services to be unreliable, inaccessible or unavailable for the duration of the Service Interruption.
3.2 NO REFUND FOR SERVICE INTERRUPTION
Company does not guarantee any specific period of uptime. You acknowledge that the 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 Services.
3.3 ENERGY USAGE OR SAVINGS
The Services may provide you with information that is unique to the energy usage of your Product. This information is an analysis of the energy usage of the 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 Company’s knowledge or control. Check with your local utility company or actual usage. Unless otherwise stated in these Terms, or in other Company agreements, Company does not guarantee or promise any specific energy savings, reduction in energy bill, or any other such monetary benefits.
4. SYSTEM REQUIREMENTS AND AVAILABILITY OF SERVICE
The use of certain Company Products and related Services 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 the Services and you acknowledge and agree that it is your responsibility to ensure the functionality of your Equipment.
4.2 AUTOMATIC SOFTWARE UPDATES
From time to time Company may develop bug fixes, patches, updates, upgrades and other such modifications to improve or secure the performance of the 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 the Services and you agree to promptly install any Software Updates that Company provides.
If you do not want Software Updates, your remedy is to terminate your Account and cease using the Services. If you do not terminate your Account, you may continue to receive automatic Software Updates.
4.3 THIRD PARTY SERVICE PROVIDERS
You acknowledge that the availability of the 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 Services.
5. COMMUNICATIONS AND PROMOTIONS
5.1 ALERTS AND NOTIFICATIONS
When you provide your contact information or create an Account, you agree to receive communications from us, related to your Account, Subscription or use of the Services, including via postal mail, e-mail, push notifications, and telephone call. Communications from Company may include but are not limited to, communications about your Account or Subscription, use of the Services, updates regarding new or existing features of the Services, or services for your Product, or promotional communications. You may choose to unsubscribe from promotional emails by following the unsubscribe instructions in the email itself or by contacting us at email@example.com or firstname.lastname@example.org. Privacy Statement Please review our Privacy Statement regarding the types of communications you receive from us.
5.2 PROMOTIONS AND CONTESTS
Additional terms and conditions may apply to surveys, contests, and promotions sponsored by Company. It is your responsibility to carefully review those terms and conditions before you participate.
6. [Intentionally blank]
7. COMPANY AUTHORIZED DEALERS
Company is a global company that works with a network of independently owned and operated dealers. Only authorized Company dealers are permitted to sell or provide Company’s Products and Services. You agree that by creating an Account or by providing your information to Company or to a Company authorized dealer in connection with Services, Company may share your information with other Company 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.
7.1 AUTHORIZED PRODUCTS AND SERVICES
You may only connect to the Company Services (i) using a product that is manufactured, distributed or sold by Company 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 Company Services with any product that is not manufactured, distributed or sold by Company 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 Company, 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 Services and/or your Account.
8.1 DIAGNOSTIC SERVICES
The diagnostic features of the Product enable Company and its authorized Dealers in some situations to identify issues which may impair optimal functioning of the 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 includes: 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 Product.
In order to provide accurate information and real time alerts, Company and its authorized Dealers have the capability to run diagnostic tests remotely without requiring any action from you. The Product will begin recording diagnostic data and reporting it to Company via a direct cellular connection when the 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 Product will cease saving or transmitting diagnostic data to Company.
To learn about how to opt-out of the Product’s collection and use of diagnostic data please review our Privacy Statement. Privacy Statement.
8.2 SUBSCRIPTION RENEWAL
While some portion 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. Your Subscription must be renewed annually, at the then applicable rate, in order to continue to access the Services available with a Subscription.
8.3 PRICE CHANGES
We reserve the right to adjust pricing for our 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 Services will take effect following notice sent to the email address connected to your Account.
8.4 PAYMENT SERVICES
You are able to pay for certain 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 of this Agreement and using the Payment Processing Services available through Company’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 Company accurate and complete information about you and you authorize Company to share it, and the transaction information related to your use of the 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.
In our sole and absolute discretion, Company may discontinue or prohibit use of the Services or may restrict, suspend, or terminate the Account associated with any user who violates any provision of these Terms, or who interferes with the operation of the Services. Such prohibition, discontinuation, restriction, suspension or termination may occur with or without notice to you. If we disable or terminate your Account, you agree not to create another Account without Company’s permission. Company also reserves the right to seek all remedies available at law and in equity for violation of these Terms.
If you believe another user is violating any of these Terms, please notify Company. We reserve the right to investigate any user suspected of violating these Terms and may gather information about that user and/or the complaining party, if any, and examine any material in the Services. In addition to the foregoing investigation rights, you hereby expressly authorize Company to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; and/or (ii) system administrators at other Internet service providers, network or computing facilities and/or any other third party to enforce these Terms or comply with any applicable law. Such cooperation may include provision of your username, IP address, or other identifying information.
Upon suspension, termination, or discontinuation of the Services or your Account, the following provisions of these Terms will survive: 10, 12, 13, 17, 19, 20, 21 and 22.
10. PROHIBITED CONTENT AND ACTIVITIES
To protect our users from Prohibited Activity, as described below, we reserve the right to take appropriate actions, including by restricting or terminating the Account of a user who in our sole and absolute judgment violates any of these Terms. To protect the integrity of the Services, we reserve the right to block users from certain IP addresses from accessing the Services.
10.1 PROHIBITED CONTENT AND ACTIVITIES
To keep the Services safe and accessible, you agree that you will not use the Services or your Account to harm Company or anyone else, interfere with the Services, or use the Services in a manner that violates the law (“Prohibited Activities”). Without limiting the foregoing, you shall not:
• Encourage or facilitate any violation of these Terms.
• Engage in any unlawful, misleading, malicious, or discriminatory activity.
• Post, send, or otherwise communicate content that is harassing, intimidating, bullying, unlawful, defamatory, obscene, pornographic, indecent, lewd, suggestive, threatening, contains nudity, is hate speech, or incites violence.
• Create a false identity or Account for the purpose of misleading others.
• Attempt to register for a new Account if we have terminated your Account.
• Post or make available content that infringes any copyright, trademark, trade secret, patent, or other intellectual or proprietary right of Company or any third party.
• Harvest, scrape, or otherwise collect, store, or manipulate any information from the Services, including the personal information of other users without the express prior written consent of such users and of Company.
• Solicit, collect, transmit, store, or disclose any personal information of any third party.
• Use the Services to disclose the personal information of others without their express prior written consent.
• Use the Services to send spam, direct marketing communications, or any other unsolicited advertising or promotional materials.
• Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt, or otherwise interfere with any software that is part of the Services.
• Upload or transmit any software, material, malware, or communication that is harmful to our users’ computers, devices or systems, or that contains a virus.
• Otherwise misuse or misappropriate any content of the Services, including but not limiting to, using it in whole or in part, on any “mirrored,” competitive, or other site.
Company grants you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to access and use the Company Services and the software provided by the Company Services.
12. INTELLECTUAL PROPERTY
You acknowledge and agree that all Sundance® Spas/Jacuzzi® logos and marks, as well as other proprietary materials depicted in connection with our Services and Services are owned, as between the Parties, solely and exclusively by Company, and may not be used commercially by you or any third party without Company’s express prior written consent.
The content contained in and related to the Services is protected under the copyright laws of the United States, Canada and other countries. You acknowledge that all copyrights and other intellectual property rights related to the Services are owned, as between the Parties, solely and exclusively by Company, to the full extent permitted, and are protected, under the United States Copyright Act, international copyright laws, and all other applicable laws. You may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works, transmit or in any way use or exploit any Company content on the Services without Company’s express prior written consent.
12.3 DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
If you believe that your work has been reproduced or distributed in a way that constitutes copyright infringement or are aware of infringing material available through the Company Services, please notify us by emailing us at email@example.com with the subject line “DMCA Takedown Request”. We will process each notice of alleged infringement that we receive and take appropriate action with respect to applicable intellectual property laws.
12.4 PROTECTION OF IP RIGHTS AND CONFIDENTIAL INFORMATION
Notwithstanding any other provision of the Agreement, Company may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
13. FEEDBACK SUBMITTED
We welcome your feedback, however, you agree that Company is free to use any comments, information, ideas, concepts, reviews, techniques, or any other material contained in any communication you may send to us (“Feedback”), worldwide and in perpetuity without acknowledgement, compensation, or payment to you.
For information about Company’s collection and use of your personal information, please read our Privacy Statements Sundance® Spas Privacy Statement, Jacuzzi® Privacy Statement and SmartTub™ Privacy Statement.
15. LINKS TO EXTERNAL SITES
For your convenience, we may provide links to other third party websites or destinations (“Third Party Sites”). You should not infer or assume that Company operates, controls, or is otherwise connected with these other Third Party Sites. These Terms do not govern your use of any other website or destination and we will not warn you that you have left the Company Services. When you click on a link within the Services and are redirected to a Third Party Site, you will be subject to the terms and conditions of that other website or destination. We encourage you to read the terms of service of any other Third Party Site that you visit before you provide any personal information.
16. CUSTOMER SUPPORT
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:
Sundance Spas, Inc.
13925 City Center Drive, Suite 200
Chino Hills, California 91709
If you need assistance or have questions about the Jacuzzi® Services or your Account, you may contact us by email, telephone, or postal mail at:
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.
17. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY; AND INDEMNIFICATION
Company is not responsible for the conduct, whether online or offline, of any user of the 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 Services or offline. Company does not assume and expressly disclaims any liability that may result from the use of information that may be provided through Company’s Services or user Accounts. You hereby expressly agree not to hold Company, or its members, officers, directors, shareholders, employees, or other affiliates (collectively the “Company Parties”) liable for the actions or inactions of any Company Party or other third party for any information, instruction, advice, or services which originated through Company’s Services or user Accounts, and the Company 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.
You acknowledge that the Product and related Services does 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 Company Products and related Services, including damage or loss resulting from the negligence of Company 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 Products and related Services as well as known or anticipated risks.
YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, THE COMPANY SERVICES AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALTIES ASSOCIATED WITH THE 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. COMPANY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE. YOU AGREE THAT COMPANY 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.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL COMPANY OR ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, OR EMPLOYEES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. 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.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY OR 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 SERVICES (INCLUDING YOUR USE OF THE CONTENT). COMPANY 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.
18. THIRD PARTY BENEFICIARY
These Terms specifically are not intended to constitute a third party beneficiary contract and therefore shall not be construed to be for the benefit of any person or entity not a Party hereto, and no such person or entity shall have any claim or right of action under this agreement.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, INCLUDING THE FORMATION, INTERPRETATION, BREACH OR TERMINATION THEREOF, INCLUDING WHETHER THE CLAIMS ASSERTED ARE ARBITRABLE, WILL BE REFERRED TO AND FINALLY DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE JAMS INTERNATIONAL ARBITRATION RULES. THE TRIBUNAL WILL CONSIST OF A SOLE ARBITRATOR. THE PLACE OF THE ARBITRATION WILL BE IN SAN BERNARDINO COUNTY, CALIFORNIA. THE LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS WILL BE ENGLISH. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF.
THE PARTIES SHALL MAINTAIN THE CONFIDENTIAL NATURE OF THE ARBITRATION PROCEEDING AND THE AWARD, INCLUDING THE PRIVACY OF THE HEARING, EXCEPT AS MAY BE NECESSARY TO PREPARE FOR OR CONDUCT THE ARBITRATION HEARING ON THE MERITS, OR EXCEPT AS MAY BE NECESSARY IN CONNECTION WITH A COURT APPLICATION FOR A PRELIMINARY REMEDY, A JUDICIAL CHALLENGE TO AN AWARD OR ITS ENFORCEMENT, OR UNLESS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION. IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) MAY NOT AWARD ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS.
IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) SHALL AWARD TO THE PREVAILING PARTY, IF ANY, THE COSTS AND ATTORNEYS’ FEES REASONABLY INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH THE ARBITRATION. IF THE ARBITRATOR(S) DETERMINE A PARTY TO BE THE PREVAILING PARTY UNDER THE CIRCUMSTANCES WHERE THE PREVAILING PARTY WON ON SOME BUT NOT ALL OF ITS CLAIMS AND COUNTERCLAIMS, THE ARBITRATOR(S) MAY AWARD THE PREVAILING PARTY AN APPROPRIATE PERCENTAGE OF THE COSTS AND ATTORNEYS’ FEES REASONABLY INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH THE ARBITRATION.
20. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of California in the United States of America, notwithstanding any conflict of law rules. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE COURTS IN OR FOR SAN BERNARDINO COUNTY, CALIFORNIA, AND FEDERAL DISTRICT COURT IN THE CENTRAL DISTRICT OF CALIFORNIA FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES ARISING UNDER THIS AGREEMENT.
If any provision of these Terms of Service is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.
These Terms: (i) are drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting Party; (iii) use, though strictly for convenience, various titles and headings which shall not affect interpretation of these Terms; (iv) set forth the Parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the Parties’ prior agreements, writings, commitments, discussions and understandings; (v) and any right or obligation set forth in these Terms can only be amended, modified, or waived in a writing signed by Company, or as otherwise noted herein; and (vii) shall bind (and inure to the benefit of) the Parties, and the Parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” shall be deemed to mean “including, but not limited to,” regardless whether such term is initially capitalized and notwithstanding any conflicting provision of these Terms. YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.