Waterway Terms of Use
Last Updated: 05/02/2022
The www.waterway.com website (the “Site”) is a service of Waterway Gas & Wash Company, a Missouri corporation (“Waterway,” “we,” “our,” or “us”). These Waterway Terms of Use (“Terms of Use”) set forth the terms and conditions applicable to your access and use of the Site. The Site provides information about our products and information on where to purchase our products (“Services”).
THESE TERMS OF USE CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND US. PLEASE READ CAREFULLY THROUGH ALL SECTIONS OF THESE TERMS OF USE. YOUR ACCESS TO AND USE OF THE SITE IS SUBJECT TO THESE TERMS AND ALL APPLICABLE LAWS AND WE RESERVE THE RIGHT TO TERMINATE YOUR ACCESS TO THE SITE IF YOU VIOLATE THESE TERMS OF USE. BY CLICKING ON LINKS WITHIN THE SITE OR WEBPAGES BEYOND THE SITE’S HOMEPAGE OR BY CLICKING ON A BOX OR ICON YOU AGREE TO THESE TERMS OF USE WHETHER OR NOT YOU COMPLETE A TRANSACTION WITH WATERWAY AND WHETHER OR NOT YOU COMPLETE YOUR TRANSACTION ON THE SITE OR THROUGH OTHER CHANNELS, SUCH AS BY TELEPHONE, EMAIL, FACSIMILE, OR OTHERWISE. IF YOU DO NOT AGREE TO THESE TERMS OF USE (WITHOUT MODIFICATION), DO NOT ACCESS OR OTHERWISE USE THE SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE, OR ANY INFORMATION CONTAINED ON THIS SITE.
MANDATORY ARBITRATION NOTICE AND CLASS ACTION AND JURY TRIAL WAIVER. These Terms of Use contain a mandatory (binding) arbitration provision and class action and jury trial waiver clauses. Except for certain types of disputes described in the arbitration section below or where prohibited by applicable law, you agree that disputes between you and us regarding your use of the Site or Services will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration, including as a class representative. The arbitrator’s decision will be subject to very limited review by a court. You will be entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in Court. For more details, see below.
We may make changes to the content available on the Site at any time. We can change, update, add, or remove provisions of these Terms of Use at any time by posting the updated Terms of Use on the Site. We will use commercially reasonable efforts to notify you of any material changes to these Terms of Use, however, we are not obligated to. You waive any right you may have to receive specific notice of such changes to these Terms of Use except for changes to our agreement to arbitration, which is discussed more fully below. Your continued access and use of the Site after we have updated the Terms of Use, constitutes your agreement to the then-current Terms of Use. The most current version of the Terms of Use can be reviewed by clicking on the “Terms of Use” link located on our web pages. You are responsible for regularly reviewing these Terms of Use.
1. General Use and Restrictions
1.1 Use of the Site. Subject to your compliance with these Terms of Use, we grant you a revocable, non-exclusive, non-transferable and limited license to access and use the Site solely to purchase Waterway products and services, establish and maintain a Waterway user account, view Waterway offers and opportunities, apply for employment, submit a fundraiser application, and apply for donations. Except for the foregoing license and as otherwise required or limited by applicable law, you have no other rights in the Site and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of the Site in any manner or for any purpose that would constitute infringement of our, our licensors’, or the Site’s other user’s intellectual property rights. You agree not to access or use the Site for any other purpose including, without limitation, any purpose that is prohibited by these Terms of Use or that is otherwise unlawful. You further agree to comply with all applicable U.S. and international laws, statutes, ordinances, regulations, contracts, and applicable licenses regarding your use of the Site. All rights not expressly granted herein are reserved.
If you breach this Terms of Use, the above license will terminate automatically.
1.2 Use of Content. Unless otherwise specified in these Terms of Use, all information and screens appearing on this Site are the sole property of Waterway or our subsidiaries and affiliates, and other parties. We provide content through the Site that is copyrighted or contains protectable trademarks of Waterway or our third-party licensors or suppliers (collectively, “Content”). Content may include documents, services, software, site design, text, graphics, logos, videos, images, icons, and other content, as well as the arrangement thereof. You may print a single copy of any information displayed or transmitted on the Site that you are authorized to access, provided that you:
(a) do not remove any notices or other information contained on such Content, and
(b) strictly comply with the provisions of the Terms of Use, including without limitation, Section 1.3 below.
1.3 Restrictions. Other than printing a single copy of particular Content as provided in Section 1.2 above, you may not (and you agree that you will not) reproduce, alter, modify, create derivative works, distribute, perform or display any Content without first receiving our express written permission.
1.4 Permitted Uses. By accessing or using the Site, you agree that:
(a) your use of the Site is subject to and governed by these Terms of Use;
(b) you will only access or use the Site and transact business with us if you are at least eighteen (18) years old;
(c) you will use the Site solely for its Services offered in the normal course of business;
(d) you will always act in accordance with the law and custom, and in good faith;
(e) you will comply with and be bound by these Terms of Use as they appear on the Site each time you access and use the Site;
(f) each use of the Site by you indicates and confirms your agreement to be bound by these Terms of Use; and
(g) these Terms of Use are a legally binding agreement between you and use that will be enforceable against you.
1.5 Restricted Uses. You further agree not to:
(a) use any of our trademarks as metatags on other websites;
(b) use the Site in any manner that is illegal or impairs the operation of the Site or its availability or usage by others;
(c) display any part of the Site in frames (or any Content via in-line links);
(d) use or access, or attempt to use or access, any portion of the Site for which you are not given access by us;
(e) transmit or upload violent, obscene, sexually explicit, discriminatory, hateful, threatening, abusive, defamatory, offensive, harassing, or otherwise objectionable content or images;
(f) dilute or depreciate our or any of our affiliates’ name and reputation;
(g) transmit or upload content or images that infringe upon any third party’s intellectual property rights or right to privacy;
(h) unlawfully transmit or upload any confidential, proprietary, or trade secret information;
(i) decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site, and not to insert any code or product or manipulate the Site in any way that affects the user’s experience including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Site; or
(j) use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any data gathering or extraction method in connection with your use of the Site except for customary search engines used in accordance with automated instructions directed to search engines and available on the Site.
Waterway has no obligation but maintains the right to monitor the Site. This list of prohibited activities provides examples and is not complete or exclusive. We reserve the right to terminate your ability to use this Site or the Content, with or without cause and with or without notice, for any reason or no reason, or for any action that we determine is inappropriate or disruptive to this Site or to any other user of this Site and/or the Content. We may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at our discretion, we will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet, which may include disclosing any information we obtain. In addition, we may disclose information we obtain as necessary or appropriate to operate or improve the Site, to protect Waterway and/or our Site users, or for any other purpose that the law permits.
2. Accounts
2.1 Registration. If we issue a username and password to you in connection with your use of the Site or any portion thereof (an “Account”), you will be considered a Registered User. Certain portions of the Site may be accessible only to Registered Users. If you are a Registered User, you may not authorize, permit, or otherwise allow any third party to access and/or use your username, password, or Account on your behalf. Accordingly, you agree to protect your username and password by, among other things, keeping your username and password confidential. You agree to notify us immediately of any unauthorized use of your username, password, or Account. If, notwithstanding the foregoing obligations, you allow another party to use your Account, you will be responsible for all use by the party using your Account.
2.2 Payment. Waterway uses a third-party payment processor, Authorize.net, to process payments and the actual processing of payments is governed by its terms of use. Once the payment has been made, Waterway refers you to its Payment Terms and Conditions as well as its Clean Car Club Terms and Conditions for additional purchase and payment conditions. If you have any other questions, please contact us at customerservice@waterway.com.
2.3 Termination/Suspension of the Site. We may, in our sole discretion, terminate or suspend your Account and/or your access to, and/or use of, the Site, or any portion thereof, at any time, with or without notice and for any reason (or no reason), and you agree that (a) if your authorization to access the Site is terminated, you will not thereafter access, or attempt to access, the Site, directly or indirectly, and (b) if your authorization to access the Site is suspended, you will not thereafter access, or attempt to access, the Site, directly or indirectly, until your suspension is removed and we give you express notice thereof.
3. User Content
3.1 Content You Provide. By uploading, forwarding, or otherwise submitting content to the Site (“User Content”), you thereby grant to Waterway a non-exclusive, royalty-free, sublicensable (through multiple tiers) license to use, reproduce, create derivative works from, store, transmit, perform, display, sell, publish, broadcast, modify, or distribute such User Content (in whole or in part) for the purposes of providing the Services and any purpose tangentially related to the Services. User Communications. By providing or submitting User Content, you represent and warrant to Waterway that you have the right to upload or otherwise submit such User Content to us and to grant Waterway the licenses and rights deemed granted in this Section 3.1 and all of your User Content do and will comply with these Terms of Use. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content. We are not responsible or liable to any third party for the content or accuracy of any User Content provided by you or any other use of the Site. For the avoidance of doubt, User Content does not include Feedback as defined below in Section 3.2.
3.2 Feedback. If you provide any comments, ideas, know-how, instructions, suggestions, information, and/or other feedback to us regarding the Site or any application available on the Site (collectively, “Feedback”), such Feedback shall be owned exclusively by Waterway. To the extent you have or obtain any intellectual property right in or to any Feedback, you shall be deemed to assign all right, title and interest therein, if any, to Waterway as of the date such right first vests in you.
3.3 Removal of User Content. You acknowledge that Waterway has no obligation to pre-screen content contributed to the Site. However, Waterway has the right, but not the obligation, at any time and without prior notice, to refuse, remove or disable any content, including your User Content, that is available via the Site. Without limiting the generality of the foregoing, Waterway may edit or remove any User Content you submit to the Site that Waterway, in its sole discretion, deems abusive, defamatory, obscene, unlawful, or otherwise unacceptable, and you waive any moral rights you may have with respect to changes in the User Content. We are not responsible for maintaining your User Content and we may, in our sole discretion, delete or destroy it at any time with no liability or obligation to you.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS WATERWAY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY WATERWAY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER WATERWAY OR LAW ENFORCEMENT AUTHORITIES.
However, we cannot review all material before it is posted on the Site, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
3.4 Limitations. You agree not to provide User Content that:
(a) contains vulgar, profane, abusive, or hateful language, epithets or slurs, texts or illustrations in poor taste, inflammatory attacks of a personal, racial, or religious nature, or expressions of bigotry, racism, discrimination or hate;
(b) is defamatory, threatening, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, unfair, contains gross exaggeration or unsubstantiated claims, is unreasonably harmful or offensive to any individual or community, contains any actionable statement, or tends to mislead or reflect unfairly on any other person, business or entity;
(c) violates or infringes any right of Waterway or any third party, including without limitation any privacy, trademark, copyright, or other intellectual property rights, or will otherwise cause injury to any third party;
(d) discriminates on the grounds of race, religion, national origin, gender, age, marital status, sexual orientation or disability, or refers to such matters in any manner prohibited by law;
(e) violates any municipal, state, or federal law, rule, regulation, or ordinance, or attempts to encourage evasion or violation thereof;
(f) unfairly interferes with any third party’s uninterrupted use and enjoyment of the Site;
(g) advertises, promotes, or offers to trade any goods or services;
(h) “flames” any individual or entity (e.g., sends repeated messages related to another user and/or makes derogatory or offensive comments about another individual), or repeats prior posting of the same message under multiple threads or subjects; or
(i) otherwise violates these Terms of Use.
4. Your Communications to the Site
4.1 User Communications. By forwarding any communications to us through the Site or by other electronic means, you thereby grant us a perpetual, royalty-free, fully paid-up, world-wide, irrevocable, non-exclusive, freely transferable, and freely sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, redistribute, and display such communications in any form for the purposes of providing the Services and any purpose tangentially related to the Services. No compensation will be paid to you with respect to our or our sublicensees’ use of your communications. By providing or submitting communications, you represent and warrant that you own or otherwise control all of the rights to your submitted communications as described in this section, including all the rights necessary for you to submit the communications and grant the license above.
4.2 Electronic Communications. By using the Site and/or the Services, you consent to receiving electronic communications, including electronic notices, from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Content. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
5. Reliance on Information Posted. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
This Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Waterway. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
6. Linking and Third-Party Dealings
6.1 Links to External Sites. We may provide hyperlinks to other websites and Internet resources operated by parties other than Waterway. We have no control over such sites and resources or their privacy policies. Such hyperlinks are provided for your reference only. The inclusion of hyperlinks to such websites does not imply any sponsorship, affiliation, or endorsement of the material on such websites or with their operators. You agree that Waterway is not responsible or liable for any content, advertising, or other materials available through the third-party websites, and that Waterway is not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any content, goods or services available through the third-party web sites and internet resources.
6.2 Linking to the Site. Subject to the further provisions of this Section 4.2, we welcome links to the Site from other websites. You may link to our webpages, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. You must not establish a link from any website that is not owned by you, cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, or otherwise take any action with respect to the materials on this Site that is consistent with any other provision of these Terms of Use. If we demand that you not link to the Site, or any portion of the Site, you agree that you will not, directly or indirectly, link to the Site or such portion of the Site as directed in our demand, at any time after such demand is made.
7. Purchasing Products. We currently only offer our products in the United States. Waterway products are not currently offered to residents of the European Economic Area.
8. Copyright Complaints. Waterway respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Owner’s copyright agent with the following information.
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
Description of the copyrighted work that you claim has been infringed;
The location on the Site of the material that you claim is infringing;
Your address, telephone number, and e-mail address;
A statement that your claim of infringement is based on a good faith belief; and
A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Owner’s agent for notice of claims of copyright infringement on the Site can be reached as follows: customerservice@waterway.com.
9. Federal and State Laws. The Site is operated from the U.S. and is intended for U.S. residents only. The Site is not approved for distribution outside of the U.S. and non-U.S. residents should not rely or act upon the information contained within. When using the Site, on the Site, or when using any content provided by us, you must obey all applicable U.S. federal, state, and local laws.
10. Minimum Age. We do not allow persons under the age of eighteen (18) to use the Site. By using the Site, you represent and warrant that you are eighteen (18) years of age or over.
11. No Warranties. The Site is provided on an “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” basis. We assume no liability or responsibility for any errors or omissions in respect of the Site including, without limitation, any errors or omissions with respect to any Content. We do not warrant the accuracy or timeliness of the Content contained on this Site. The Content has not been verified or authenticated in whole or in part by us, and it may include inaccuracies or typographical or other errors. Further, we do not represent or warrant that any aspect of the Site will work properly or will be continuously available. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE SITE, WE AND OUR SUPPLIERS, VENDORS, AND PARTNERS HEREBY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, SECURITY, QUALITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, ACCURACY, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE AND/OR ANY OF OUR SUPPLIERS KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE IN RESPECT OF THE SITE (INCLUDING, WITHOUT LIMITATION, THE CONTENT). FURTHERMORE, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT IN RESPECT OF THE SITE (INCLUDING, WITHOUT LIMITATION, THE CONTENT). BY PROVIDING THE SERVICES ON THE SITE, WE DO NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. WE ARE ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE SITE AT ANY TIME, IN OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. Some jurisdictions do not allow implied warranties to be excluded or modified, so not all of the above limitations may apply to you.
12. Indemnification. You hereby agree to indemnify, defend, and hold harmless Waterway and its affiliates, officers, directors, employees, shareholders, information providers, suppliers, and licensees (collectively, “Indemnified Parties”) from and against any and all liability and costs, including, without limitation, reasonable attorney’s fees, incurred by the Indemnified Parties in connection with any claim arising out of or related to (a) your access and/or use of the Site including, without limitation, any Content, (b) any breach of any of these Terms of Use by you or, if applicable, any user of your Account, (c) your User Content, and/or (d) any allegation which, if true, would constitute a breach of any of these Terms of Use by you or, if applicable, any user of your Account.
13. Limitation of Liability. WE CANNOT GUARANTEE THE SITE WILL BE AVAILABLE ONE HUNDRED PERCENT (100%) OF THE TIME BECAUSE PUBLIC NETWORKS, SUCH AS THE INTERNET, OCCASIONALLY EXPERIENCE DISRUPTIONS. ALTHOUGH WE STRIVE TO PROVIDE THE MOST RELIABLE WEBSITE REASONABLY POSSIBLE, INTERRUPTIONS AND DELAYS IN ACCESSING THE SITE ARE UNAVOIDABLE AND WE DISCLAIM ANY LIABILITY FOR DAMAGES RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL WATERWAY AND/OR ITS PARTNERS, VENDORS, OR SUPPLIERS BE LIABLE FOR (A) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, THE LOSS, DELAY OR INABILITY TO USE THE SITE, THE LOSS OF ANY CONTENT OBTAINED THROUGH THE SITE, AND/OR THE INACCURACY OF ANY CONTENT, AND/OR (B) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF USE AND/OR OTHERWISE ARISING OUT OF THE USE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT), IN EACH OF (A) AND (B) ABOVE WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND EVEN IF WATERWAY AND/OR ITS PARTNERS, VENDORS, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ALL EVENTS, WATERWAY AND ITS PARTNERS, VENDORS, AND SUPPLIERS AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF USE AND/OR THE SITE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE SHALL BE LIMITED TO THE GREATER OF (I) $5.00, OR (II) THE SUM OF FEES PAID BY YOU HEREUNDER, IF ANY, DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE APPLICABLE CLAIM FIRST ARISES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
14. MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL. Most concerns can be resolved quickly and to your satisfaction by contacting us as set forth in the “Questions” section below.
In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us as described above and otherwise set forth herein to the extent allowed by law , you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (a) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (b) the applicable statutes of limitations; and (c) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (i) making written demand for arbitration upon the other party; (ii) initiating arbitration against the other party; or (iii) filing a motion to compel arbitration in court.
If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.
Notwithstanding anything to the contrary in these Terms, and except as otherwise set forth in this paragraph, the agreement to arbitration may be amended by us only upon advance notice to you. If we make any amendment to this agreement to arbitration (other than renumbering the agreement to align with any other amendment to the Terms) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding or action against us prior to the effective date of the amendment. The amendment shall apply to all other Claims governed by this agreement to arbitration that have arisen or may arise between you and us. However, we may amend this agreement to arbitration and not provide you notice; in that case, the amendments will not apply to you and the agreement to arbitration contained in these Terms to which you agreed will continue to apply to you and us as if no amendments were made.
If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Site, the Services, and any other actions with us.
You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at customerservice@waterway.com and including in the subject line “Rejection of Arbitration Provision.”
15. Privacy. A description of what personal information Waterway collects and how Waterway uses that personal information is provided in Waterway’s Privacy Policy available here.
16. Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of Missouri, excluding its conflicts of law rules, and the United States of America. Except as set forth in the agreement to arbitration and without waiving it. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms (including but not limited to if you opt out of the agreement to arbitration) shall be governed by the exclusive jurisdiction and venue of the state and federal courts of St. Louis, Missouri, except where the jurisdiction and venue are mandated by applicable assignment.
17. Miscellaneous
17.1 Controlling Terms. These Terms of Use, including, without limitation, (a) any other terms and conditions that may appear on the Site from time to time (such as, without limitation, additional representations that we may ask you to make when submitting information to the Site), and (b) any written terms and conditions that you and Waterway may agree in writing (executed by you and Waterway with specific reference to these Terms of Use) are to supplement these Terms of Use (whether such writing is agreed to before, after, or concurrently with these Terms of Use), contain the full understanding with respect to your use and access of the Site and supersede all prior agreements, terms, conditions, and understandings, both written and oral, with respect to such use and access of the Site.
17.2 Assignment. You may not transfer any rights or obligations you may have to your Account or under these Terms of Use without our prior written consent. We may transfer our rights under these Terms of Use without your consent.
17.3 Invalidity; Unenforceability. If any portion of these Terms of Use is held to be invalid or unenforceable, the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remainder of these Terms of Use shall remain in full force and effect.
17.4 Admissibility. A printed version of these Terms of Use and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
17.5 Waiver. The failure of Waterway to insist upon or enforce strict performance by you of any provision of these Terms of Use shall not be construed as a waiver of any provision or right.
17.6 Nonexclusive Remedies. None of Waterway’s rights or remedies conferred by these Terms of Use are exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
17.7 Notice. We may provide notice to you relating to the Site and/or these Terms of Use by any reasonable means including, without limitation, sending an email to your last known email address, and any such email notice shall be deemed given and received on the day it is sent.
17.8 Questions. If you have any questions or comments about these Terms of Use or this Site, please contact us by email at customerservice@waterway.com.
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