TERMS OF SERVICE

THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND THE POOL CLOUD CORPORATION (“WE” OR “POOL CLOUD”), THE OWNER AND OPERATOR OF THE WWW.POOLCLOUD.COM WEBSITE (THE “SITE”) AND THE POOL CLOUD APPLICATION (THE “APPLICATION”, OR “SERVICE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND SERVICES, AND ANY PURCHASE MADE BY YOU OF THE PRODUCTS SOLD THROUGH THIS SITE OR APPLICATION. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR OR SERVICE, OR PURCHASE PRODUCTS FROM THE SITE OR SERVICE.

By using this Site and/or Application, you acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site and/or Application with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless Pool Cloud if your child breaches or disaffirms any term or condition of this Agreement.

Changes to the site, application

Pool Cloud may add to, change or remove any part of the Site and/or Application, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.

Personal Information

Customers agree to provide accurate, current, and complete information. Pool Cloud reserves the right to block further usage of the Site and/or Application to Customers who provide false, inaccurate or incomplete data.

Privacy

By using this Site and/or Application you consent to the collection, transfer, manipulation, storage, disclosure and other uses of your information as described in detail in our Privacy Policy (available for your review at http://www.poolcloud.com/privacy). Irrespective of which country you reside in or supply information from, you authorize Pool Cloud to use your information in the United States. Accordingly, please be sure to read our Privacy Policy before using the Services or submitting information to us.

PLEASE TAKE NOTICE that Pool Cloud reserves the right to automatically collect various types of information about your visits to the Site and/or Application. In addition to the personal information provided by you in connection with your account registration, we may also collect certain additional information by automated means, such as cookies, web beacons, and other automated devices.

The types of information we may collect by such automated means include: Information about the devices our visitors use to access the Internet (such as the IP address and the device, browser, domain name and operating system type); URLs that refer visitors to our Site; Dates and times of visits to our Sites; Information on actions taken on our Site (such as page views and site navigation patterns); A general geographic location (such as country and city) from which a visitor accesses our Site; Search terms that visitors use to reach our Site and the webpage that led you to the Site.

Pool Cloud’s Privacy Policy, located at the URL: http://www.poolcloud.com/privacy (the “Privacy Policy”), explains how Customers’ personally identifiable information is collected, used and disclosed. You hereby agree that we may use your personal information in accordance with the terms of the Privacy Policy, which is incorporated herein by this reference as though set forth in full.

Passwords

You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Pool Cloud if there is any unauthorized use of your password on this Site and/or Application or if you know of any other breach of security in relation to this Site and/or Application.

Use of Site and Application; Prohibitions

Subject to your compliance with this Agreement, Pool Cloud hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site and Application and to use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site and/or Application (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site, Application, and Content automatically terminates without notice to you.

You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site, Application, and/or Content or otherwise attempt to gain unauthorized access to any portion of the Site, Application, and/or Content or any other systems or networks connected to the Site, or to any server of Pool Cloud or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site, Application, and/or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site, Application, or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site, Application, and/or Content.

TERMS OF SALE

Section 1 - Sale of Products

Pool Cloud sells pool chemicals and other pool maintenance supplies (the “Product(s)”) from the Site and/or Application to end-user customers who purchase the Products only for their own personal, non-commercial use. You may not purchase Products for further distribution or resale or for any other commercial or business purpose.

Section 2 - Pricing

Pricing for Products (including any applicable shipping and handling fees) can be found within Pool Cloud’s then-current Application on relevant pricing or order submission confirmation pages and/or on the then-current Site at: http://www.poolcloud.com/pricing. The price that we will charge you for the Products will be the price as posted on the Site or Application at the point of sale as displayed in advance to the Customer. Pool Cloud reserves the right to change prices for Products at any time, and does not provide price protection or refunds in the event of promotions or price decreases.

Section 3 - Refund/Cancellation Policy

If you are dissatisfied with the Product for any reason, Pool Cloud will refund the amount paid and the shipping costs to return the Product to us at an address of our specification. Refund requests must be made directly to Pool Cloud at [email protected]. All refund requests must be made within thirty (30) days of the date of shipment by Pool Cloud. Pool Cloud is not liable for Products that are damaged or lost in transit to Pool Cloud. Promptly following Pool Cloud’s receipt of your request (typically within five (5) business days), Pool Cloud will credit the amount paid for the returned Product to the account you used to make the original purchase. Notwithstanding the foregoing, Pool Cloud does not control when a specific credit card company or financial institution processes a chargeback transaction. You are responsible for contacting your credit card company or financial institution if you have questions about the status of the chargeback.

Pool Cloud reserves the right not to provide a refund for a request that is received by Pool Cloud more than thirty (30) days after the date of original shipment. Pool Cloud also reserves the right not to provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.

Section 4 - Shipping and Product Acceptance

The shipment date will be determined at the time of purchase; Pool Cloud reserves the right to establish the shipment date by considering additional factors and agrees to inform the Customer of estimated shipment dates at that time.  Shipping dates are estimates only.  Furthermore, Pool Cloud reserves the right to determine, at the time of purchase, the shipping carrier and method and guarantees no specific shipping preferences to the Customer unless otherwise stated at the time of purchase. The risk of loss and title for all Products purchased via the Site and/or Application pass to the Customer upon delivery of the item to the carrier.

Proprietary Rights

You hereby acknowledge and agree that Pool Cloud or its licensors own all legal right, title and interest in and to the Site and/or Application and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and/or Application and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.

Pool Cloud is a trademark of The Pool Cloud Corporation in the United States. Other trademarks, names and logos on this Site and/or Application are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site and/or Application, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Pool Cloud, Copyright © 2015 The Pool Cloud Corporation. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

Third Party Web Sites

The Site and/or Application may provide links to third party Sites that are not owned or controlled by Pool Cloud, including, without limitation, Facebook, Twitter and LinkedIn (“Third Party Sites”). We provide such links solely as a convenience to you. Pool Cloud does not review, approve, endorse, or make any representations about such Third Party Sites, the companies or persons who own and/or operate them, or any information, software or other products and services made available through such Third Party Sites, or any results that may be obtained from using them. You should exercise common sense and your own judgment, and if you decide to access any Third Party Sites linked to the Site, you do so entirely at your own risk, and you are solely responsible for your activities conducted in connection with such Third Party Sites. Your use of Third Party Sites is subject to the terms of use and privacy policies located on the linked to Third Party Sites which may be different from this Agreement or our Privacy Policy, including, without limitation, such Third Party Sites’ password and account security policies and user-generated content posting and acceptable use policies.

Cloud Sharing between Customers

You hereby agree that the use of the “Pool Sharing” functionality of the Site and/or Application is undertaken at your sole discretion; and you hereby agree that its usage is not in any way necessary for the operation of the Site and/or Application; and you hereby agree that any information relevant to that entity which becomes enabled with the Pool Sharing functionality is expressly permitted to be communicated to that User with whom you have shared the entity.  

Indemnification

You hereby agree to defend, release, indemnify and hold harmless each of the Pool Cloud Parties (as defined in the Section(s) below) from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Application, Content or Products.

DISCLAIMER OF WARRANTIES

THE SITE, APPLICATION, CONTENT, AND PRODUCTS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. POOL CLOUD, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “POOL CLOUD PARTIES”): (A)EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B)DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATION, CONTENT, OR PRODUCTS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C)DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATION, CONTENT, OR PRODUCTS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D)DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE SITE, APPLICATION, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, APPLICATION, CONTENT, OR PRODUCTS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, APPLICATION, CONTENT, AND PRODUCTS.

THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND POOL CLOUD. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POOL CLOUD OR ANY PERSON ON BEHALF OF POOL CLOUD SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.

NOTHING IN THIS DISCLAIMER OF WARRANTIES SHALL EXCLUDE OR LIMIT THE POOL CLOUD PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

LIMITATION OF LIABILITY

Section 1

IN NO EVENT SHALL ANY POOL CLOUD PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A POOL CLOUD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 2

IF, NOTWITHSTANDING THE FOREGOING, A POOL CLOUD PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, APPLICATION, CONTENT, OR PRODUCTS, THE RELEVANT POOL CLOUD PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID POOL CLOUD FOR THE PRODUCTS, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).

Section 3

NOTHING IN THIS LIABILITIES SECTION SHALL EXCLUDE OR LIMIT ANY POOL CLOUD PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH POOL CLOUD PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW

Section 1 - Dispute and Arbitration; Class Action Waiver

Please read this carefully. It affects your rights.

Section 2 - Summary

Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at [email protected] or Pool Cloud, Attn: Customer Service, 3675a 19th Street, California 94110. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO POOL CLOUD’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as any of our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.

We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in the Section below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor Pool Cloud has the right to act as a class representative or participate as a member of a class of claimants with respect to any claim.

All disputes relating in any way, directly or indirectly, to Pool Cloud for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the laws of the State of Delaware, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i)there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii)all damages claims and awards will be governed by the provisions of the Delaware Civil Code, and (iii)the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. The proceeding and the decision shall be kept confidential by the parties.

Section 3 - Choice of Law

This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Delaware, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in Dover County, Delaware. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.

ELECTRONIC COMMUNICATIONS; GENERAL TERMS

Electronic Communications

Whenever you visit our Site and/or Application or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site and/or Application or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

General Terms

Pool Cloud may issue a warning, temporarily suspend, indefinitely suspend or terminate any Customer’s right to use or access all or any part of the Site and/or Application including any account thereon, without notice, for any reason in Pool Cloud’s sole discretion, including without limitation breach of this Agreement and/or violation of the Terms of Service, Pool Cloud’s belief that such access would violate any applicable law, rule or regulation or would be harmful to the interests of, or potentially cause financial loss or legal liability to Pool Cloud or another user of the Site and/or Application. This Agreement and the Privacy Policy constitute the entire agreement between you and Pool Cloud regarding its subject matter. Pool Cloud will not be responsible for failures to fulfill any of its obligations due to causes beyond its control. The failure of Pool Cloud to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this Agreement, and the other parts will remain in full force and effect. The parties shall at all times and for all purposes be deemed to be independent contractors and neither party nor its agents may bind the other party. The parties acknowledge and agree that this Agreement and all related documents that may be drawn up are only valid in the English language. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each indemnified Pool Cloud Party shall be a third party beneficiary hereunder. Pool Cloud may assign or transfer its rights, or delegate any performance, under this Agreement to a third party in its sole discretion. Customer may not assign or otherwise transfer its rights, or delegate its performance, under this Agreement to any third party without in each and every case, Pool Cloud’s express prior written consent. All terms which by their nature are intended to survive any termination of this Agreement, or any termination of your use of the Site, Application, Content, or Products shall survive such termination.