AQUAMARINE POOLS™
Terms & Conditions
Introduction
Welcome to our website (“Website”). This Website is owned and
operated by Aquamarine Pools™ (as defined below). This is a contractual
agreement between you and Aquamarine Pools™. Your visitation, access or other
use of this Website constitutes your acceptance of this Agreement (as defined
below). Aquamarine Pools™ may modify the Agreement at any time
without prior notice to you. Such modification shall be effective immediately
upon the first of the following events to occur: (1) posting of the modified
Agreement to the website, or (2) upon otherwise notifying you of the modified
Agreement. You agree to periodically review the terms and conditions set forth
in this Agreement to ensure that you are aware of any modifications.
NOTIFICATION OF
ARBITRATION CLAUSE AND
CLASS ACTION/JURY TRIAL WAIVER
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT
YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL
BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION, AS set forth
BELOW.
Definitions
“Agreement” means these Terms & Conditions and any
Customer Purchase Agreement that may be entered into by and between Aquamarine
Pools™ and you or any third person.
“Aquamarine Pools” includes Aquamarine Pools of Houston LLC, Aquamarine
Pools of Texas LLC, Aquamarine Pools of DFW LLC, Aquamarine Pools of San
Antonio LLC and their respective parent companies (if any), subsidiaries,
affiliates, successors and assigns.
“Customer Purchase Agreement” means a written agreement by
and between Aquamarine Pools™ and one or more persons to purchase a pool and/or
spa along with associated labor, materials, services and/or equipment under the
Customer Purchase Agreement.
"Personally
Identifiable Information" means any information that identifies a natural
person, such as name, Social Security Number or other government-issued number,
date of birth, address, telephone number, biometric data, and the like.
“Person” means a natural person, entity,
association or organization, unless otherwise specified.
“Website” or “site” means any and all pages of the website
(individually and collectively) you are viewing at the moment.
“User” or “you” or "your" refers to any and all natural
persons, entities, associations and/or organizations who visit, create an
account with, access or use this Website in any way imaginable, whether through
existing technology or through technology not heretofore manufactured, devised
or discovered, or who request, purchase, subscribe to, access, or otherwise use
the goods and services offered on this Website.
Security
Any communication you make on this Website or over the
Internet, whether sent via e-mail, via a form on the Website, or a message
board, etc., should be regarded as an insecure communication, unless we
explicitly state on a particular web page that you can expect the communication
to be secure or encrypted.
Refusal & Termination of Service
You agree to abide by the Agreement. Aquamarine Pools™ reserves
the right to terminate or refuse service to anyone, at any time, for any reason
or no reason at all, without prior notice, including, without limitation, for
violating any provision of this Agreement.
License to Use the Website
Aquamarine Pools™ grants, subject to the terms of
this Agreement, a limited, non-transferable, non-sublicensable, non-exclusive
license to use the software, content and documentation which it owns or of
which it is a licensee for the limited purposes accessing, exploring and using
the Website in real time in a manner consistent with this Agreement.
Intellectual Property Rights in the Website
Unauthorized duplication of this Website, in whole or in
part, or of any plans, designs, specifications, data or content made available
from the Website (except as expressly authorized herein) is a violation of the
Copyright Act of 1976.
Copyrights
Unless otherwise stated, Aquamarine Pools™ owns the copyright
interests in this Website and is the owner or a licensee of the plans, designs,
specifications, data and content hereon, including, without limitation, all
text, graphics, images, video material, audio material, audiovisual material, and
other content, regardless of media format, whether now existing or hereafter
arising (“Copyright Material”). The Copyright Material is protected by United
States and international copyright laws. You may display and download portions
of the Website solely for your own personal, non-commercial use. You agree not
to change or delete any proprietary notices from materials downloaded from the Aquamarine
Pools™ Website. All other uses, including, without limitation, the
reproduction, copying, modification, distribution, sale, lease, transmission,
republication, performance, or display, or any commercial use of the content on
this site are strictly prohibited by law.
Trademarks
AQUAMARINE POOLS™ and all associated logos, designs, images,
and graphical depictions are trademarks, trade names, or service marks of Aquamarine
Pools™ (individually and collectively the “Trademarks”). The Trademarks may not
be used in any manner by any person or in connection with any product or
service, without the prior express written authorization of an officer or
director of Aquamarine Pools™. All other trademarks, service marks, and trade
names are the property of their respective owners and are used on this site by
virtue of a right or license from their respective owners.
Notice and
Procedure for Making Claims of Copyright Infringement
Notice
of Claimed Infringement
Pursuant to 17 U.S.C. § 512, claims of copyright infringement
must be submitted to the following designated agent for Aquamarine Pools™:
Hank
Fasthoff
Fasthoff Law Firm PLLC
21
Waterway Ave., Suite 300
The
Woodlands, Texas 77380
hank
<@> fasthofflawfirm.com
To be effective, the notification must be
a written communication that includes the following:
(i) A physical or electronic
signature of a person authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed;
(ii) A reasonably detailed description of the alleged
infringing material, or, if multiple copyrighted works are alleged to be
infringing, a representative list of such works on this website;
(iii) A reasonably detailed description of where the alleged
infringing material is located on this website;
(iv) Information reasonably sufficient to permit us to
contact the complaining party, such as an address, telephone number, and, if available,
an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good-faith
belief that use of the material in the manner complained of is not authorized
by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is
accurate, and under penalty of perjury, that the complaining party is
authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed.
Counter-Notice
If
you believe that your content that was removed pursuant to a Digital Millennium
Copyright Act notice we received is not infringing, or that you have the
authorization from the copyright owner, the copyright owner's agent, or
pursuant to law, to post and use the content, you may send a counter-notice
containing the following information to the Copyright Agent at the address
listed above:
(i) Your physical or
electronic signature;
(ii) Identification of the content that has been
removed or to which access has been disabled and the location at which the
content appeared before it was removed or disabled;
(iii) A statement that you have a good faith belief
that the content was removed or disabled as a result of mistake or a
misidentification of the content; and
(iv) Your name, address, telephone number, and e-mail
address, a statement that you consent to the jurisdiction of the federal court
in Cook County, Illinois, and a statement that you will accept service of
process from the person who provided notification of the alleged infringement.
If
a counter-notice is received by the Copyright Agent, we may send a copy of the
counter-notice to the original complaining party informing that person that it
may replace the removed content or cease disabling it in 10 business days.
Unless the copyright owner files an action seeking a court order against the
content provider, member or user, the removed content may be replaced, or
access to it restored, in 10 to 14 business days or more after receipt of the
counter-notice, at our sole discretion.
Submissions
Aquamarine Pools™ values and encourages feedback. Pursuant to
Aquamarine Pools’™ policy, however, we do not accept or consider creative ideas,
suggestions, or materials. If you choose to send any creative submissions to
us, whether at Aquamarine Pools’™ request, or despite our request
that you do not send submissions to us, then you hereby irrevocably assign and transfer
to Aquamarine Pools™ any and all rights, throughout the universe, in and to
each submission (including the individual elements of each submission), without
any compensation therefor, including, without limitation, all domestic and
foreign copyrights, trademark rights (and goodwill appurtenant thereto), patent
rights, trade secret rights, know-how, and all other intellectual property
rights and other rights, whether now existing or hereafter arising. To the
extent moral rights may not be assigned or transferred, you hereby irrevocably
waive enforcement of any and all moral rights. Aquamarine Pools™ shall be
entitled to complete unrestricted use of the submissions and all content, data
and information contained therein for any purpose, whether commercial or
otherwise, without compensation to, or recognition or acknowledgment of, the
author(s) or provider(s) of the submissions.
User Representations & Warranties
You represent and warrant that you are at least 18 years of
age and have reached the age of majority in the location where you reside. You
further represent and warrant that you possess the legal right and ability to
enter into this Agreement and to use the Website, goods, and services in
accordance with this Agreement. You agree to be financially responsible and
otherwise responsible for your use of the Website, goods, and services offered
by Aquamarine Pools™ and to comply
with your responsibilities and obligations as stated in this Agreement. You
further agree to (i) provide true, accurate, current
and complete information about you as requested by the forms available on this
Website; (ii) to maintain and update your information to keep it secure, true,
accurate, current, and complete, and (iii) you will not upload, post or
otherwise make available any content or material on this site that infringes
any rights of anyone.
You further represent and warrant that you will not provide to
us the name, address, email address, phone number, or other personal identifying
information of any person under the age of 13.
Governing Law, Jurisdiction, & Venue; Arbitration
Any disputes arising under or related to the Agreement and/or
the Website shall be governed by and interpreted pursuant to the laws of the
State of Texas and the United States of America without regard for conflicts of
laws principles, and without regard
to the United Nations Convention on the International Sale of Goods, the application
of which is hereby disclaimed.
Except
as may be set forth in any Customer Purchase Agreement, all disputes arising
under or relating to the Agreement and/or the Website, shall be submitted to
and resolved by binding arbitration in Montgomery County, Texas, and any award
shall be confirmed exclusively by a court of competent jurisdiction situated in
Montgomery
County, Texas. You further
irrevocably agree and consent to the exclusive jurisdiction and venue of the
courts situated in Montgomery County, Texas and the Southern District of Texas for
the purposes of reviewing, confirming or otherwise relating to any arbitration
award, and you hereby irrevocably waive jurisdiction and venue in any other
forum for such purposes. Any arbitration
shall be conducted on a confidential basis pursuant to the Construction
Arbitration Rules of the American Arbitration Association. Any decision or
award as a result of any such arbitration proceeding shall be in writing and shall
provide an explanation for all findings of fact and conclusions of law, and
shall be kept confidential and not disclosed for any purpose except as required
by law, e.g., disclosure to tax
advisors for the purpose of filing a tax return. The arbitrator shall award
reasonable and necessary attorney’s fees and costs to the prevailing party. To
the extent of any conflict or inconsistency between these Terms &
Conditions and any Customer Purchase Agreement, the jurisdiction and venue set
forth in such Customer Purchase Agreement shall control. All other terms hereof
shall remain the same and apply with equal force to the Customer Purchase
Agreement.
WAIVER OF CLASS ACTION/JURY TRIAL
ARBITRATION
MUST BE ON AN INDIVIDUAL BASIS. YOU MAY NOT JOIN OR CONSOLIDATE CLAIMS OR
PARTIES IN ARBITRATION, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A
REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY,
AND YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO FILE ANY SUCH CLAIM
OR PARTICIPATE IN ANY PROCEEDING IN ANY SUCH CAPACITY. YOU FURTHER HEREBY
IRREVOCABLY WAIVE YOUR RIGHT TO A JURY TRIAL.
INDEMNIFICATION
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AQUAMARINE
POOLS OF HOUSTON LLC, AQUAMARINE POOLS OF TEXAS LLC, AQUAMARINE POOLS OF DFW
LLC AND AQUAMARINE POOLS OF SAN ANTONIO LLC, AND THEIR RESPECTIVE PARENT COMPANIES
(IF ANY), SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THE
FOREGOING’S PAST, PRESENT AND FUTURE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS,
MANAGERS, PARTNERS, SHAREHOLDERS, OWNERS, ASSOCIATES, JOINT VENTURERS,
CONTRACTORS, ATTORNEYS, INSURERS, AGENTS AND REPRESENTATIVES (INDIVIDUALLY AND
COLLECTIVELY, THE “AQUAMARINE ENTITIES”), FROM AND AGAINST ALL LIABILITIES,
DAMAGES, LOSSES, CLAIMS, CAUSES OF ACTION, COSTS, ATTORNEY’S FEES, AND ALL
OTHER COSTS AND EXPENSES, IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO (I)
YOUR BREACH OF ANY CUSTOMER PURCHASE AGREEMENT, (III) ANY OF YOUR ACTUAL OR
ALLEGED NEGLIGENT, WILFUL OR INTENTIONAL ACTIONS OR OMISSIONS ARISING OUT OF OR
RELATING TO YOUR VISITATION, USE OR MISUSE OF THIS SITE OR ANY GOODS, SERVICES,
MATERIALS, DATA, INFORMATION, AND OTHER CONTENT OFFERED OR MADE AVAILABLE ON
THIS SITE, AND ANY GOODS OR SERVICES AND/OR SOLD BY AQUA UNDER A CUSTOMER
PURCHASE AGREEMENT. THE AQUAMARINE ENTITIES MAY, AT THEIR SOLE DISCRETION,
CHOOSE TO PARTICIPATE IN THE DEFENSE OR ANY MATTER OR CLAIM OR NEGOTIATED
SETTLEMENT. NO SETTLEMENT WHICH MAY HAVE THE POTENTIAL TO AFFECT THE AQUAMARINE
ENTITIES’ RIGHTS IN ANY WAY SHALL BE ENTERED INTO WITHOUT THE AQUAMARINE
ENTITIES’ PRIOR WRITTEN APPROVAL, WHICH MAY BE WITHHELD AT ITS SOLE DISCRETION.
LIMITATION OF LIABILITY
YOU AGREE THAT THE AQUAMARINE ENTITIES SHALL NOT BE LIABLE
FOR ANY DAMAGES OF ANY KIND, OR FOR ANY DEFENSE OR INDEMNITY, REGARDLESS OF THE
NATURE OR CAUSE OF THE DAMAGES, DEFENSE OR INDEMNITY, THAT ARISE OUT OF OR RELATE
TO YOUR USE OF THE WEBSITE, OR A CUSTOMER PURCHASE AGREEMENT, ANY GOODS OR
SERVICES PURCHASED FROM OR PROVIDED BY THE AQUAMARINE ENTITIES, OR THE
PROVISIONING OF CONTENT, INFORMATION, GOODS, SERVICES, OR OTHER MATERIAL ON, OR
ACCESSIBLE THROUGH, THIS WEBSITE AND/OR IN ANY Aquamarine Pools™ EMAILS, NEWSLETTERS, OR IN ANY
EXTERNALLY-LINKED THIRD PARTY SITE. WITHOUT LIMITING THE FOREGOING, THE AQUAMARINE
ENTITIES SHALL NOT BE LIABLE FOR ANY ACTUAL, DIRECT, INDIRECT, INCIDENTAL,
PUNITIVE, EXEMPLARY, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER
CAUSE, LOSS, ACTION, CLAIM, OR DAMAGE, INCLUDING LOSS OF TIME, LOSS OF
OPPORTUNITY, LOSS OF BUSINESS, LOSS OF EARNINGS, OR INJURY TO PERSON (INCLUDING
DEATH) OR PROPERTY, REGARDLESS OF WHETHER THE AQUAMARINE ENTITIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN THOUGH CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), STRICT LIABILITY OR
OTHER LEGAL FAULT OF THE AQUAMRINE ENTITIES. IF, IN SPITE OF THE FOREGOING,
THERE IS A FINDING OF LIABILITY AGAINST THE AQUAMARINE ENTITIES, YOU AGREE THAT
ANY DAMAGES FOR WHICH THE AQUAMARINE
ENTITIES MAY BE LIABLE SHALL BE LIMITED TO THE SUM OF MONEY AQUAMARINE ENTITIES
HAS RECEIVED FROM YOU.
DISCLAIMER OF WARRANTIES
ALL CONTENT AND INFORMATION OFFERED OR MADE AVAILABLE ON THIS
SITE ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR THE EXPRESS WRITTEN LIMITED WARRANTIES
THAT ARE PROVIDED IN CONNECTION WITH A CUSTOMER PURCHASE AGREEMENT, THE
AQUAMARINE ENTITIES AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF
ANY TYPE, NEITHER EXPRESS NOR IMPLIED, AS TO THE SITE, GOODS, SERVICES, CONTENT
OR INFORMATION MADE AVAILABLE ON THE SITE. EXCEPT FOR THE EXPRESS LIMITED WRITTEN
WARRANTIES THAT ARE PROVIDED IN CONNECTION WITH A CUSTOMER PURCHASE AGREEMENT, THE
AQUAMARINE ENTITIES AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ALL
TYPES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THE AQUAMARINE ENTITIES SHALL NOT BE LIABLE
TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE
ACCESS OR USE OF THIS SITE OR ANY PLANS, DESIGNS, GOODS, SERVICES, MATERIALS, DATA,
INFORMATION, AND OTHER CONTENT OFFERED OR MADE AVAILABLE ON THIS SITE OR IN
CONNECTION WITH A CUSTOMER PURCHASE AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
ACTUAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, AND/OR
CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER CAUSE, LOSS, ACTION, CLAIM, OR DAMAGE,
INCLUDING LOSS OF OPPORTUNITY, LOSS OF TIME, LOSS OF BUSINESS, LOSS OF
EARNINGS, OR INJURY TO PERSON (INCLUDING DEATH) OR PROPERTY.