Thank you for visiting the VivoPoint website (the “Platform”), owned and operated by VivoAquatics Inc. (“VivoAquatics”). VivoAquatics is an industry-leading provider of innovative water management solutions.
You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent such waiver is permitted under applicable law.
WHILE WE ENABLE END USERS OF THE PLATFORM TO PERFORM REMOTE WATER MANAGEMENT, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH EVENTS AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY OR ACCURACY OF INFORMATION PROVIDED THORUGH THE PLATFORM. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE OF THIS INFORMATION.
YOU ACCEPT THAT WE ARE NOT RESPONSIBLE FOR, AND WE EXPRESSLY DISCLAIM, ALL LIABILITY THAT MAY RESULT FROM ANY INFORMATION PROVIDED BY VIVOAQUATICS, WHETHER ONLINE OR OFFLINE. VIVOAQUATICS DOES NOT SPONSOR, ENDORSE, RECOMMEND OR APPROVE ANY PARTICULAR COURSE OF ACTION TAKE AFTER INFORMATION IS RECEIVED.
- Registration. Your registration will be completed internally by one of our team members.
- Internet Access. When using the Platform on your mobile, laptop or desktop device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining continuous Internet access for your Device through a Wi-Fi or LTE data communication network and (ii) any Internet connection and telecommunications fees and charges that you incur.
- Your Device. VivoAquatics is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Platform, including, but not limited to, sound reception, screen display operation and quality and camera features of your Device.
- Your Communications. You are responsible for all communications, verbal and non-verbal, that you submit in connection with your use of the Platform and the content of all information contained in such communications (“Submitted Content”). You are responsible for ensuring that (a) all Submitted Content is original and accurate, and (b) none of the Submitted Content is (i) a falsehood or misrepresentation; (ii) offensive, unlawful, obscene, defamatory, libelous, threatening, harassing, hateful or racially or ethnically offensive. You grant VivoAquatics a perpetual, irrevocable, non-terminable, transferrable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, record, store and reproduce the Submitted Content and to distribute the Submitted Content to its Customer, the property owner (“Licensee”).
3.2 No Liability for Termination. You agree that VivoAquatics shall not have any liability whatsoever for any damage, loss or expenses of any kind that you may suffer as a result of any termination of your access to our use of the Platform (including, without limitation, damage, loss or expenses), whether or not VivoAquatics is aware of any such damage, loss or expenses.
5.1 Trademarks. The VivoPoint and VivoAquatics name and logo are trademarks and service marks of VivoAquatics. You do not have the right to use any of VivoAquatics’ trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
5.2 Ownership. You acknowledge and agree that VivoAquatics, or its licensors, owns all right, title and interest in and to the Platform, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Platform is protected by U.S. and international copyright laws. Further, you acknowledge that the Platform may contain information that VivoAquatics has designated as confidential and you agree not to disclose such information without VivoAquatics prior written consent.
6.1 User Content. VivoAquatics may provide you with interactive opportunities through the Platform, including, by way of example, the ability to send and post video and photographs. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit (“Make Available”) through the Platform. You hereby grant VivoAquatics a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with VivoAquatics’ business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You agree not to use the Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that VivoAquatics is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Platform.
6.2 You agree that any submission of any ideas, suggestions, and/or proposals to VivoAquatics through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that VivoAquatics has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to VivoAquatics a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
The Platform is operated by VivoAquatics in the United States. If you choose to access or use the Platform from a location outside of the United States, you do so on your own initiative, and you are responsible for compliance with applicable local laws.
10.1 YOU UNDERSTAND AND AGREE THAT THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, MAY NOT BE FUNCTIONAL ON CERTAIN DEVICES AND/OR IN CERTAIN COMPUTING ENVIRONMENTS AND VIVOAQUATICS SHALL HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE PLATFORM OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE PLATFORM.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVOAQUATICS EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
10.3 VIVOAQUATICS MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, TIMELINESS, CORRECTNESS OR RELIABILITY OF ANY INFORMATION MADE AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM.
10.4 VIVOAQUATICS DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE PLATFORM WILL BE CORRECTED OR (e) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVOAQUATICS AND ITS AFFILIATES, LICENSEES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM, EVEN IF VIVOAQUATICS OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA GENERATED, COLLECTED, PROCESSED OR MAINTAINED BY OR THROUGH YOUR USE OF THE PLATFORM.
11.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF VIVOAQUATICS OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of VivoAquatics and the Related Parties shall be limited to the fullest extent permitted by law.
13.1 This is a Class Action Waiver. In the interest of resolving disputes between you and VivoAquatics in the most expedient and cost effective manner, you and VivoAquatics agree that every dispute arising in connection with these Terms will be resolved by binding individual arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and can be subject to very limited review by courts. While the parties will be permitted to engage in discovery or exchange of non-privileged information relevant to the dispute, arbitration may allow for more limited discovery allowed for in court. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Platform, or your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.
YOU AND VIVOAQUATICS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
Unless both you and VivoAquatics agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The court may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Any arbitration between you and VivoAquatics shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267. The arbitrator is bound by these arbitration terms. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrabilty of this Section 13.
13.2 Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”).
VivoAquatics’ address for Notice is:
- VivoAquatics Inc.
- Attn: Legal
- 245 W Foothill Blvd.
- Monrovia CA, 91016
The Notice must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or VivoAquatics may commence an arbitration proceeding.
13.3 Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by submitting a request here. The notice must be sent within thirty (30) days of your creating an account with VivoAquatics or the effective date of the first set of Terms containing a Dispute Resolution and Arbitration section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, VivoAquatics also will not be bound by them.
August 7, 2019