Web Site and Application Terms of Use
Last updated December 17, 2021
Welcome to www.hotspring.com the Web Site for Watkins Wellness® ("Watkins"). We maintain this Site and the Hot Spring® Spas App for general promotional, investor relations and public information purposes. Additionally, we maintain the Hot Spring Spas App as an optional means to view and/or control specific aspects of your spa. The following Terms of Use ("Terms") apply to your use of this Site, the Hot Spring Spas App and other websites and apps operated by Watkins that display or link to these Terms of Use (together with any Content, Software, materials and services available therein, and successor Site(s) and App(s) thereto, collectively "Web Site or App", "Site or App" or “App”). Please read them carefully! By using this Web Site or App, you are agreeing to be bound by these Terms. You may not use this Site and/or App if you do not agree to these Terms. These Terms hereby incorporate by this reference any additional terms and conditions posted by us through the Site and/or App, or otherwise made available to you by us.
Unless the context indicates otherwise, as used in these Terms, (i) "Watkins Wellness", "Watkins", "us," "we" and "our" refer to Watkins Wellness and its parent, subsidiaries and affiliates, (ii) "Content" refers to any or all text, documents, photographs, images, graphics, logos, emblems, designs, layouts, trademarks, trade names, service marks, copyrighted materials, audio and video presentations and other information and materials provided by us on, through or in connection with this Web Site and/or App including user interfaces and the selection, coordination and arrangement of such information and/or materials, and (iii) "Software" refers to any software made available to you for downloading through the Site or App.
By using the Site or App, you affirm that you are of legal age to enter into these Terms.
these Terms contain a mandatory arbitration provision that, as further set forth in the “Governing Law; and Arbitration” section below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
Changes to this Site, the App, or these Terms
We may change or discontinue all or any part of this Web Site or App (including access to this Web Site or App via any third-party links) at any time without prior notice or obligation to you; charge, modify or waive any fees required to use this Web Site or App; or offer opportunities to some or all Web Site or App users. We may also change these Terms at any time by notifying you of such changes by any reasonable means, including by posting revised Terms through the Site or App. Any such changes to the Terms will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms incorporating such changes, or otherwise provided notice of such changes. Your continued use of the Site and/or App after such changes have been posted will constitute your acceptance of the changes to these Terms. The “Last updated” legend above indicates when these Terms were last changed.
Information Submitted Through the Site or App
Your submission of information through the Site or App is governed by our Privacy Policy, located at https://www.hotspring.com/privacy-policy (the “Privacy Policy”). You represent and warrant that any information you provide in connection with the Site or App is and will remain accurate and complete, and that you will maintain and update such information as needed.
Intellectual Property
The Site and App are owned and operated by Watkins in conjunction with others pursuant to contractual arrangements, and the Site and App, including any Content and Software (and any intellectual property and other rights relating thereto) is and will remain the property of Watkins and its licensors and suppliers. The Site and App, including any Content and Software, and the selection, compilation, collection, arrangement and assembly thereof, is protected by U.S. and international copyright, trademark and other intellectual property or proprietary rights and laws, and you acknowledge that these rights are valid and enforceable. Except as expressly set forth in the "Permitted and Prohibited Uses" section below, or otherwise authorized in advance by Watkins in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or App or any materials made available through the Site or App.
The trademarks, trade names, service marks, product packaging, designs and corporate logos and emblems displayed on this Site or App belong exclusively to Watkins , our third party licensors or their respective owners, and are protected under United States and international trademark and other proprietary rights and laws. Our trade names, trademarks and service marks include, but are not limited to, Hot Spring®, Highlife®, Limelight® and Hot Spot®. The trade names, trademarks and service marks owned by Watkins, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site or App be construed as granting, by implication, estoppel or otherwise, any license or right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
Registration
Some areas of the Site or App may require you to be or become registered with the Site or App. When and if you register with the Site or App, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to suspend or terminate your use of the Site or App (or any portion thereof).
As part of the registration process, you will be asked to select a username and password. We may reject, or require that you change, any username, password or other information that you provide to us in registering, including if such information impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You are entirely responsible for maintaining the confidentiality of your username and password and such username and password are for your personal use only. You agree not to transfer or resell your use of or access to the Site or App to any third party. If you have reason to believe that your account with us is no longer secure, you must promptly change your password by visiting www.hotspringspas.com and immediately notify us of the problem by sending us an e-mail through the Contact Us section or by calling Customer Care at1-800-999-4688, Ext. 8432. You are entirely responsible for any and all activities that are conducted through your account (including Purchases (as defined below), as applicable) whether or not authorized by you.
Permitted and Prohibited Uses
Subject to your compliance with these Terms, and solely for so long as you are permitted by Watkins to access and use the Site or App, you may view and make one electronic or paper copy of the information posted on any screens of this Web Site or App, provided that you use the copy solely for your personal, informational and non-commercial purposes and that you (i) keep all copyright and other proprietary notices intact, (ii) do not modify the Content or use it in a manner that suggests an association with any of our products, services or brands, and (iii) do not download quantities of the Content to a database that can be used to avoid future downloads from this Site or App. You may execute a single copy of any Software made available to you through the Site or App. Use or downloading of the Software is conditioned on acceptance of the terms and conditions of any license agreements relating to such Software, including agreements of third parties. By acquiring or using the Software, you agree to such terms and conditions. While using the Site or App, the Content, and the Software, you agree to comply with all applicable laws, rules, and regulations.
You may not, in connection with the Site or App, do any of the following:
Reproduce, upload, post, transmit, display, modify, adapt, translate, create derivative works of, sell, resell, rent, lease, loan, timeshare, distribute, redistribute or otherwise use or exploit any materials or design elements of this Site or App, any other portion of this Site or App, or use of or access to the Site or App, except as expressly authorized herein, without our prior written consent;
Use or access the Site or App, including any Content or Software, for any commercial purpose;
Reverse engineer, decompile or disassemble the Software or any portion of the Site or App otherwise attempt to determine the source code or trade secrets of the Site, App, or the Software, except where such restriction is expressly prohibited by applicable law;
Violate or attempt to violate the security of the Site or App;
Restrict or inhibit any other visitor or member from using the Site or App, including, without limitation, by means of "hacking" or defacing any portion of the Site or App;
Use the Site or App including any Content or Software, for any tortious, fraudulent, or otherwise unlawful purpose;
Impersonate any person or entity, including without limitation any representative of Watkins; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site or App; or express or imply that any statements you make are endorsed by us, without our prior written consent; or modify the Site or App, including any Content or Software, use it in a manner that suggests an association with us or any of our products, services or brands;
Transmit, post or otherwise make available through or in connection with the Site or App (a) any content or information that is unlawful, fraudulent, threatening, harassing, degrading, hateful, intimidating, abusive, libelous, defamatory, obscene, indecent, pornographic or otherwise objectionable, or otherwise fails to respect the rights and dignity of others; (b) any material, non-public information about companies without the authorization to do so; (c) any information or material protected by trade secret, copyright, trademark, right of publicity or privacy or any other intellectual property or proprietary right of any third party, without the express prior written consent of the applicable owner; (d) any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as "hacking," "cracking," or "phreaking"; or (e) any advertisements, solicitations, junk mail, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
Engage in spamming or flooding;
Transmit, post or otherwise make available through or in connection with the Site, App or any software or other materials that contain any viruses, worms, Trojan horses, Easter eggs, defects, date bombs, time bombs, spyware or other computer code, file, program or item of a destructive nature that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”);
Remove any copyright, trademark or other proprietary rights notices contained in the Site or App, including with respect to any Content or Software;
"Frame" or "mirror" any part of the Site or App, or otherwise incorporate any portion of the Site or App into any product or service, without our prior written authorization;
Use any robot, spider, Site or App search/retrieval application or other manual or automatic device or process to retrieve, index, scrape, "data mine" or otherwise gather Site or App-related content or information or in any way reproduce or circumvent the navigational structure or presentation of the Site or App or its contents. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site or App's root directory, Watkins grants to the operators of public search engines permission to use spiders to copy materials from the Site or App for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Watkins reserves the right to revoke these exceptions either generally or in specific cases, at any time and without notice.
Use the Site or App to advertise or offer to sell or buy any goods or services without our express prior written consent;
Create a database by systematically downloading and storing Site or App content;
Use the Site or App to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or harvest or collect information about Site or App visitors or members without their express consent; or
Otherwise disrupt or interfere with the operation of the Site or App or the servers or networks used to make the Site or App available; or violate any requirements, procedures, policies, or regulations of such networks.
Your use of the Site or App is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination or suspension of your access to the Site or App. If you download Software from the Site or App, such Software is licensed on a limited basis to you by us or the owner of such Software. Title to the Software is not transferred to you. You own the medium on which the Software is recorded, but we or our third-party licensors retain all right, title, and interest in and to the Software, and all intellectual property rights therein. You may not re-sell or transfer the Software to any third party.
Forums; Submissions; and Public Communication
This Site or App may enable users to make available certain materials or content (each, a “Submission”), through or in connection with the Site or App, including on the Site or App's interactive services, such as in a chat area, message board or other forum, or through chatting, commenting or e-mail functions or other messaging functionality (each, a “Forum”). Any Forum on the Site or App is a free service to enable you to share comments about Products (as defined below) on our Site or App. If you participate in a Forum in connection with the Site or App, any information you disclose in a Submission may be publicly available and you should exercise caution in deciding whether to disclose any personal, financial, or other sensitive information there. If you choose to make any of your personally identifiable or other information publicly available through the Site or App, including through a forum, you do so at your own risk.
For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us and our designees a worldwide, non-exclusive, royalty-free, fully paid-up, worldwide, transferable, sublicenseable (through multiple tiers), assignable, perpetual, irrevocable right and license to reproduce, display and perform (publicly or otherwise), distribute, create derivative works based on, adapt (including edit, modify, translate, and reformat), transmit, make, have made, sell, offer for sale, import and otherwise use, analyze and exploit such Submission, or incorporate such Submission into any format or media now known or later developed, for any purpose whatsoever, including for commercial or promotional purposes, without additional compensation to you or any third party. For all such Submissions, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, and that such Submissions, and your provision thereof through or in connection with the Site or App, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable laws, rules, regulations or rights of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding all Submissions that you may have under any applicable law under any legal theory.
Watkins cannot prevent other persons who access this Site or App from using Submissions and personal information they find here, even if their use of that information violates the law, or your personal privacy or safety. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions.
When participating in a Forum, you should not assume that people are who they say they are, know what they say they know or are affiliated with whom they say they are affiliated with. Information obtained in a Forum may not be reliable and it is not a good idea to trade or make any investment decision based solely or largely on information you cannot confirm. We cannot be responsible for the content or accuracy of any information and shall not be responsible for any trading or investment decisions made based on such information.
We may and expressly reserve the right, but have no obligation, to monitor, scan, intercept, review, analyze, store, alter or remove any information (including Submissions or any messages, information, content or other materials sent to you, or received by you, in connection with the Site or App or the Forums or its or their features or functionalities), at any time, including while it is in transit, and before and after it is stored or made available through the Site or App, and to monitor, review or analyze your access to or use of the Site or App, in each case by manual, automated or other means, and in each case for any purpose, including such purposes as may be described in the Privacy Policy. You acknowledge and agree that we have the right to disclose such information, the circumstances surrounding its transmission, and the identity of the poster to any third party for any reason or purpose.
A testimonial board post or other Submission is not an effective way to tell us you need help with an order or Site or App feature. If you would like to tell us about a specific problem, please send an e-mail through the Contact Us section at https://www.hotspring.com/contact-us or by calling Customer Service at 1-800-999-4688, Ext. 8432. Watkins disclaims liability for any failure on its part to provide help with a specific problem disclosed on this Site or App.
Rules for Sweepstakes, Contests and Games
Any sweepstakes, contests, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Site or App may be governed by specific rules that are separate from these Terms. By participating in any Promotions, you will become subject to any such rules. We urge you to read any applicable rules, which will be linked from the particular activity, and to review our Privacy Policy (which can be found at https://www.hotspring.com/privacy-policy) which, in addition to these Terms, governs any information you submit in connection with such Promotions. To the extent that the terms and conditions of such rules conflict with these Terms, the terms and conditions of such rules shall govern with respect to the applicable Promotion.
Making Purchases
The Site or App may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, “Products”), as well as references and links to Products. Such Products may be made available by us or by third parties, and may be made available for any purpose, including general informational purposes. We may make available the ability to purchase or otherwise obtain certain Products through the Site or App (a “Purchase”). If you wish to make a Purchase, you will be asked by Watkins or the third party provider of the Product to supply certain information applicable to your Purchase, such as your credit card number, its expiration date, your billing address, your shipping information and other relevant information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY PURCHASE. By submitting such information, you grant to Watkins the right to use, store and disclose such information in accordance with our Privacy Policy, including, without limitation, by providing such information to third parties for purposes of facilitating the completion of Purchases initiated by you or on your behalf. You agree that all information that you provide to Watkins or such third party provider will be accurate, current, and complete. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred, including all shipping and handling charges. You will also be responsible for paying any applicable taxes relating to your Purchases. Descriptions or images of, or references to, Products on the Site or App do not necessarily imply Watkins's endorsement of such Products. We reserve the right, including without prior notification, to change such descriptions, images, or references, to limit the order quantity on any Product and/or to refuse service to you. Verification of information applicable to a Purchase may be required prior to Watkins's acceptance of any order. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of any Product listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the price and availability of any Product (including the validity of any coupon or discount) are subject to change without notice. If you have any questions or complaints regarding your order, or if you would like further information, please contact Customer Service at 1-800-999-4688, Ext. 8432.
We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. Weights, measures, and descriptions are approximate and for convenience only. The inclusion of any Products on this Site or App at a particular time does not imply or warrant that these Products will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Site or App. By placing an order, you represent that the Products ordered will be used only in a lawful manner. Watkins reserves the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code, discount or other similar promotions; to bar any user from making any or all Purchase(s); and/or to refuse to provide any user with any Product. Refunds and exchanges will be subject to Watkins's applicable refund and exchange policies then in effect. When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is complete and compliant with the shipping restrictions contained on this Site or App and located in a jurisdiction where Watkins, in its sole discretion, permits shipment of the ordered Product(s). All Purchases from this Site or App are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Site or App pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTIES, IF ANY, APPLICABLE TO YOUR PURCHASED PRODUCT: (A) THE SITE OR APP (INCLUDING ANY CONTENT, SOFTWARE OR FORUMS) AND ANY PRODUCTS AND THIRD-PARTY MATERIALS (AS DEFINED BELOW) ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) WE AND OUR AFFILIATED ENTITIES (AS DEFINED BELOW) DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, INCLUDING (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING SUITABILITY OF THE SITE OR APP OR ANY PRODUCTS FOR YOUR NEEDS OR REQUIREMENTS OR THOSE OF ANY OTHER PERSON), (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (III) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS OR COMPLETENESS OF THE SITE OR APP (INCLUDING ANY CONTENT AND SOFTWARE), (IV) WARRANTIES RELATING TO THE OPERATION OF THE SITE OR APP (INCLUDING DELAYS, INTERRUPTIONS, ERRORS, VIRUSES, DEFECTS OR OMISSIONS), (V) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE OR OTHER ACTS OR OMISSIONS BY US OR ANY THIRD PARTY, AND (VI) WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Watkins AND ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES, SERVICE PROVIDERS, CONSULTANTS AND AGENTS (THE “AFFILIATED ENTITIES”) DO NOT WARRANT THAT YOUR USE OF THE SITE OR APP WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR APP OR THE SERVER(S) ON WHICH THE SITE OR APP IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE OR APP, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE OR APP AND YOUR RELIANCE THEREON. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH Watkins AND ITS AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
A possibility exists that the Site or App, including any Content, Software or Forums could include inaccuracies or errors, or information or materials that violate or conflict with these Terms (specifically, the rules of conduct set forth in Section 6 above). Additionally, a possibility exists that unauthorized alterations could be made by third parties to the Site or App, including to any Content, Software or Forums. Although we try to maintain the integrity, timeliness, and security of the Site or App, we make no guarantees that the Site or App is or will remain updated, complete, correct or secure, or that access to the Site or App will be uninterrupted. In the event that a situation arises in which the Site or App's completeness or correctness is in question, please visit https://www.hotspring.com/contact-us and send an email through the Contact Us section, with, if possible, a description of the material to be checked and/or the location (URL) where such material can be found on the Site or App, as well as information sufficient to enable us to contact you. We will try to address your concerns as soon as reasonably practicable.
Third-Party Materials; and Links from this Web Site or App
Certain Site or App functionality may make available access to information, products, services and other material made available by third parties, including Submissions (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via hyperlinks from this Web Site or App. By using such functionality, you are directing us to access, route and transmit to you the applicable Third-Party Materials. However, by providing such links or making available such access, we are not endorsing, nor are we responsible for, such third parties or Third-Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third-Party Materials, or any intellectual property rights therein. We are not responsible or liable for and make no representations or warranties with respect to any Third-Party Materials or any further links contained there to other Site or Apps. Certain Third Party Materials may, among other things, be inaccurate, misleading, or deceptive. If you use a Web Site or App that is hyperlinked to this Web Site or App or access any Third-Party Materials, you do so at your own risk; we are under no obligation to monitor Third-Party Materials, nor are we responsible for assuring that the Third-Party Materials are free from any Viruses. We may discontinue, block, or disable access to Third-Party Materials (in whole or in part) at any time without notice or obligation to you. In addition, the availability of any Third-Party Materials through or in connection with the Site or App does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third-Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such third-party materials (such as terms of service or privacy policies of the providers of such third-party materials).
Links to this Web Site
If you wish to provide a hyperlink from your Web Site to this Web Site, you may do so only under the following conditions: (i) any link to our Site or App must be a text-only link and clearly marked "Hot Spring® Spas Website"; (ii) the link must "point" to the URL www.hotspring.com and not to other pages within our Site; (iii) when selected by a user, the link must display our Site on full-screen and not within a "frame" on the linking Site; (iv) the appearance, position and other attributes of the link may not imply that you or any related organizations or entities are endorsed or sponsored by, affiliated with, or associated with us; (v) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with our names and trademarks; (vi) the linked Site may not contain content that could be construed as distasteful, offensive or controversial or that is not appropriate for all age, racial, religious and other groups protected by law; and (vii) we reserve the right to revoke our consent to the link at any time in our sole discretion and you will remove the link immediately upon our request. By linking your Website to ours, you are agreeing to be bound by these Terms.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER WATKINS NOR ANY OF OUR AFFILIATES, NOR ANY OF ITS AFFILIATED ENTITIES, ARE OR WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE OR LOST PROFITS, LOSS OF OTHER INTANGIBLES, OR LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS)), UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, (B) WITHOUT LIMITING THE FOREGOING, NEITHER WATKINS NOR ITS AFFILIATED ENTITIES WILL BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR APP (INCLUDING ANY CONTENT OR FORUMS) OR FROM ANY PRODUCTS OR THIRD-PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH, (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR APP (INCLUDING ANY CONTENT, SOFTWARE OR FORUMS), ANY PRODUCTS, OR ANY LINKED SITE OR APP OR OTHER THIRD-PARTY MATERIALS, IS TO STOP USING THE SITE OR APP, PRODUCTS, LINKED SITE OR APP OR OTHER THIRD-PARTY MATERIALS, AS APPLICABLE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF WATKINS AND ITS AFFILIATED ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE OR APP AND (II) TEN DOLLARS ($10.00). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH WATKINS AND ITS AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND CONSEQUENTLY SOME OR ALL OF THESE LIMTATIONS MAY NOT APPLY TO YOU. IF YOU ARE A RESIDENT OF THE STATE OF NEW JERSEY, PLEASE SEE THE “IMPORTANT NOTE TO NEW JERSEY CONSUMERS” SECTION BELOW.
Governing Law; and Arbitration
These Terms are governed by, and shall be construed in accordance with, the laws of the State of New York and the United States of America (including federal arbitration law), without reference to any choice of law rules under New York law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND WATKINS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT WATKINS AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator's decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
Termination
These Terms are effective until terminated. Watkins, in its sole discretion, may terminate or suspend your access to or use of the Site or App, at any time and for any reason, including if Watkins believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon any such termination or suspension, your right to use the Site or App will immediately cease. You agree that any termination or suspension of your access to or use of the Site or App may be effected without prior notice, and that, upon such termination or suspension, Watkins may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that Watkins and the Affiliated Entities shall not be liable to you or any third party for any termination or suspension of your access to the Site or App or to any such information or files, and shall not be required to make such information or files available to you after any such termination or suspension. The “Information Submitted Through the Site or App,” "Intellectual Property," “Registration,” “Permitted and Prohibited Uses” (solely with respect to the prohibitions set forth therein); "Forums; Submissions and Public Communication," “Making Purchases,” "Disclaimer of Warranties," “Third-Party Materials; and Links from this Web Site or App,” "Limitation of Liability," "Governing Law; and Arbitration," "Termination," “Violations; and Indemnity,” “Claims of Copyright Infringement,” "Jurisdictional Issues," “Feedback; and Questions,” “Important Note to New Jersey Consumers” and "Miscellaneous" sections will survive any termination of these Terms.
Violations; and Indemnity
We reserve the right to seek all remedies available at law and in equity for violations of these Terms, including termination, suspension or blocking of your access to this Web Site or App. Our failure to enforce any provision of these Terms will not constitute a waiver of such provision or of our legal or equitable rights. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless us and the Affiliated Entities from and against any and all damages, claims, liabilities, judgments, losses, awards, costs, expenses and fees (including attorneys' fees), arising out of or related to (i) your violation or alleged violation of these Terms; (ii) any allegation that any materials you submit to us or transmit to the Site or App (including any Submissions) infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (iii) your access to or use of, or activities in connection with, the Site or App (including any Content or Software).
Notice for California Users
Under California Civil Code Section 1789.3, California Site or App users are entitled to the following specific consumer rights notice: If you are a California resident and have a question or complaint regarding the Site or App, please visit www.hotspring.com and send an e-mail through the Contact Us section. You may also contact us by writing to 1280 Park Center Dr, Vista, CA 92081, Attention: Customer Care, or by calling us at 1-800-999-4688, Ext. 8432. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Notice for International Users
All international users of the App are advised that Watkins applies a General Data Protection Regulation (Eu Regulation 2016/679) equivalent level of protection to the processing of personal data of international users. The details thereof are available under the Watkins privacy policy. Statutory provisions under applicable consumer protection legislation remain unaffected by these Terms.
Claims of Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Watkins infringe your copyright (for example, materials posted by Watkins on one of our Forums), you (or your agent) may send us a notice by mail or e-mail requesting that the material be removed, or access to it blocked. If you believe in good faith that a notice of copyright infringement has been wrongly filed by someone against you, the DMCA permits you to send Watkins a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
Filtering
Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from Wikipedia. Please note that Watkins does not endorse any of the products or services listed at such Site or App.
Jurisdictional Issues
The Site or App is controlled or operated (or both) from the United States and is not intended to subject Watkins to any non-U.S. jurisdiction or law. Except where expressly stated otherwise, we make no representation that the Site or App, including any Content or Software, is appropriate or available for use in other non-U.S. locations. Those who choose to access the Site or App from such other locations do so on their own initiative and at their own risk and are responsible for compliance with all applicable local laws, rules, and regulations in doing so. The supply of goods and services through the Site or App is further subject to United States export control and economic sanctions requirements. By acquiring any such items through the Site or App, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods or services through the Site or App (a) if you are in, under the control of, or a national or resident of, Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the United States has embargoed goods or placed any other export restriction; or (b) if you are on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders or any other U.S. government lists of restricted end users; or (c) if you intend to supply the acquired goods or services to anyone who is subject to the foregoing restrictions. By downloading or using any such goods or services (including any Software), you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and/or intend to supply such goods or services to anyone who is subject to such restrictions. We reserve the right to limit the availability of the Site or App and/or the provision of any service, program, film or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service, program, film or other product that we provide.
Investment Information
The information contained on the Site or App may not be current and should not be used or relied on for any decision to invest in, purchase, retain, sell or otherwise transfer the stock of our parent company, Masco Corporation, or for any related purpose. Masco Corporation is a publicly held Delaware Corporation and files quarterly and annual reports with the United States Securities and Exchange Commission in Washington, D.C. ("SEC").
Forward-Looking Statements
The information contained on the Site or App may not be current and should not be used or relied on for any decision to invest in, purchase, retain, sell or otherwise transfer the stock of our parent company, Masco Corporation, or for any related purpose. Masco Corporation is a publicly held Delaware Corporation and files quarterly and annual reports with the SEC.
Statements in any news release of Watkins contained on the Site or App or communicated orally or in writing that concern us or our management and that are not historical facts are "Forward-Looking Statements." Forward-Looking Statements include, without limitation, statements that (a) include the words "believes," "expects," "anticipates," "estimates" or words of similar importance or meaning with reference to us or our management; (b) are specifically identified as forward-looking; (c) describe any of our plans, objectives or goals for future operations and products; or (d) concern the characteristics and growth of our markets or customers or our expected liquidity and capital resources. Forward-Looking Statements are only predictions involving important factors and risks that may cause actual results to differ materially from those discussed in any Forward-Looking Statement. Those important factors and risks include, without limitation, economic, competitive, governmental, and technological factors affecting our operations, markets, products, services, and prices. Important factors and risks are described in our parent company's (Masco Corporation's) current annual report filed with the SEC, and may be detailed from time to time in additional reports and other filings of Masco Corporation filed with the SEC. Copies of the most recent reports and other filings of Masco Corporation can be accessed through the SEC EDGAR system located at www.sec.gov or may be obtained at no charge from Masco Corporation. Watkins expressly disclaims any obligation or responsibility to update or revise or supplement any Forward-Looking Statement in any news release or generally to any extent.
Feedback; and Questions
We welcome questions, comments and other feedback about this Terms of Use, the Web Site or App and about our Products, including ideas, proposals, suggestions, or other materials (“Feedback”). However, please be aware that, whether related to the Site or App or otherwise, such Feedback will be deemed a Submission hereunder, and you hereby acknowledge and agree that we will treat all such Feedback as non-confidential and we may reproduce, use, disclose and distribute such Feedback without notice or obligation to you. You further acknowledge and agree that your provision of such Feedback is gratuitous, unsolicited and without restrictions, and does not place us under any fiduciary or other obligation. If you have any questions or comments, please send an e-mail through the Contact Us section of www.hotspring.com.
Important Note to New Jersey Consumers
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify Watkins and its Affiliated Entities (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
Miscellaneous
These Terms may be supplemented by additional terms posted at other locations on this Site or App, but these Terms will supersede in the event of a conflict with such additional terms. These Terms and such additional terms constitute our entire agreement with you regarding your use of this Web Site or App and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Watkins relating to such subject matter. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. All terms defined in the singular shall have the same meaning when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms shall be construed as if followed by the phrase “without limitation.” The invalidity of any term, condition or provision of these Terms of Use shall not affect the enforceability of those portions deemed enforceable by applicable courts of law. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Watkins. You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under these Terms without restriction. Notices to you may be made via posting to the Site or App, by e-mail, or by regular mail, in Watkins's discretion. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Watkins will not be responsible for failures to fulfill any obligations due to causes beyond its control.
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