POOLS123™
Terms & Conditions
Introduction
Welcome to our website (“Website”). This Website is owned and operated by Pools123™ (as defined below). This is a contractual agreement between you and Pools123™. Your visitation, access or other use of this Website constitutes your acceptance of this Agreement (as defined below). Pools123™ 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 any Pools123™ entity and you or any third person.
“Pools123” includes Pools123 Austin LLC, Pools123 Corpus Christi LLC, Pools123 DFW LLC, Pools123 Houston LLC, Pools123 San Antonio LLC, Pools123 Waco LLC and their respective parent companies (if any), subsidiaries, affiliates, successors and assigns.
“Customer Purchase Agreement” means a written agreement by and between Pools123™ 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. Pools123™ 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
Pools123™ 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, Pools123™ 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 Pools123™ 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
POOLS123™ and all associated logos, designs, images, and graphical depictions are trademarks, trade names, or service marks of Pools123™ (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 Pools123™. 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 Pools123™:
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
Pools123™ values and encourages feedback. Pursuant to Pools123’™ 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 Pools123’™ request, or despite our request that you do not send submissions to us, then you hereby irrevocably assign and transfer to Pools123™ 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. Pools123™ 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 Pools123™ 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 Pools123 Austin LLC, Pools123 Corpus Christi LLC, Pools123 DFW LLC, Pools123 Houston LLC, Pools123 San Antonio LLC, Pools123 Waco 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 “POOLS123 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 POOLS123 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 POOLS123 ENTITIES’ RIGHTS IN ANY WAY SHALL BE ENTERED INTO WITHOUT THE POOLS123 ENTITIES’ PRIOR WRITTEN APPROVAL, WHICH MAY BE WITHHELD AT ITS SOLE DISCRETION.
LIMITATION OF LIABILITY
YOU AGREE THAT THE POOLS123 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 POOLS123 ENTITIES, OR THE PROVISIONING OF CONTENT, INFORMATION, GOODS, SERVICES, OR OTHER MATERIAL ON, OR ACCESSIBLE THROUGH, THIS WEBSITE AND/OR IN ANY Pools123™ EMAILS, NEWSLETTERS, OR IN ANY EXTERNALLY-LINKED THIRD PARTY SITE. WITHOUT LIMITING THE FOREGOING, THE POOLS123 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 POOLS123 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 POOLS123 ENTITIES, YOU AGREE THAT ANY DAMAGES FOR WHICH THE POOLS123 ENTITIES MAY BE LIABLE SHALL BE LIMITED TO THE SUM OF MONEY POOLS123 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 POOLS123 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 POOLS123 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 POOLS123 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.