Terms and Conditions
IF YOU DISAGREE WITH ANY OF THESE TERMS OR CONDITIONS, DO NOT USE OUR WEBSITE
Thank you for purchasing from Hot Springs Pools & Spas (the "Company" or "we"). We hope that you enjoy your purchase and that you get the most out of your products. By accepting delivery of your purchase and not returning it to the Company before you use it, you hereby irrevocably agree to all provisions of these Terms and Conditions.
SECTION 1 — DEFINITIONS
Unless otherwise indicated in these Terms and Conditions, the following terms, when capitalized, shall have the meanings set forth below:
1.1 "Affiliate" means, with respect to any specified person or entity, any other person or entity who, directly or indirectly, controls, is controlled by, or is under common control with such person or entity.
1.2 "Credit Card" means the credit card and the credit card information that you provided to Hot Springs Pools & Spas or its agent when you purchased our product via the internet at hotspringspools.net.
1.3 "Media" means all DVDs, infomercials, advertisements, and other media used to advertise and/or describe the products and services offered by Hot Springs Pools & Spas.
1.4 "You" means the individual who purchased products or services from Hot Springs Pools & Spas by authorizing the credit card in question to be charged the purchase price (as defined below).
SECTION 2 – PURCHASE PRICE; TAXES; PAYMENT TERMS
2.1 Purchase Price. The aggregate purchase price for the is (a) the total of the base product prices plus (b) shipping and handling in customary amounts; plus (c) any applicable Taxes (as defined below), if any (collectively, the "Purchase Price"). The Purchase Price is due and payable on the day you order your product(s) from Hot Springs Pools & Spas and you hereby authorize Hot Springs Pools & Spas and its agents to charge your Credit Card the Purchase Price on the day that you place your order. You also agree that the Purchase Price is non-refundable and that your only remedies in the event that your products do not work in accordance with their specifications are the remedies set forth in Section 3.1 below.
2.2 Taxes. You acknowledge and agree that the Base Purchase Price is exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges (collectively, the "Taxes"), and you will be responsible for payment of all Taxes (other than Taxes based on the Company's income) and any related penalties and interest arising from the sale of the Company's products to you. You also agree to indemnify and defend the Company in connection with any proceedings brought by any taxing authorities in connection with the sale of the Company's products to you, except with regard to Taxes based on the Company's income.
2.3 Payment and Delivery Terms.
(a) Our products will be shipped to you FOB Destination Point, Freight Prepaid.
(b) If you have cancelled your Credit Card or revoked the authorization for Hot Springs Pools & Spas or its agent to charge the Purchase Price to your Credit Card prior to the full payment of the Purchase Price, then Hot Springs Pools & Spas has the right to levy interest at the lesser of: (i)1.5% per month; or (ii) the maximum rate allowed by law, on the unpaid portion of the Purchase Price from the date that any overdue payments are due. (c) All payments of the Purchase Price shall be free from all setoffs and shall be made in U.S. dollars via the Credit Card or an alternative credit card provided by you and acceptable to Hot Springs Pools& Spas.
SECTION 3 — REMEDIES; EXCLUSION OF WARRANTIES; LIMITATION OF LIABILITY
3.1 Remedies. If your product does not work in accordance with its specifications during the 30 day period after you order it (the “Guaranty Period”), then Hot Springs Pools & Spas will send you a replacement product provided that you: (i) call the 1-800 phone number that accompanies your product and you follow all instructions provided to you when you call the applicable 1-800 phone number; and (ii) you send a check or money order made payable to Hot Springs Pools & Spas for $10.95 (to cover the cost of shipping and handling for your new product) at the address provided to you when you call the 1-800 phone number. For purposes of clarification, you are responsible for all shipping costs to deliver the defective product to Hot Springs Pools & Spas and collect shipments will not be accepted. You agree that the replacement of your product during the Guaranty Period is your sole and exclusive remedy if the product does not work in accordance with its specifications. In addition, you are solely responsible for: (x) any breakage of the product; (y) any damage or injury you suffer in connection with the use of the product; or (z) for any other matter relating to the product. For purposes of clarification, the Guaranty Period begins only on the date of Hot Springs Pools & Spas’s receipt of your original order for the product and not on any date thereafter, including, but not limited to, the date you may ship your original product for replacement or the date upon which your product is received by Hot Springs Pools & Spas or its agent for replacement.
3.2 EXCLUSION OF WARRANTIES; LIMITATION OF LIABILITY. OTHER THAN AS SET FORTH IN SECTION 3.1, HOT SPRINGS POOLS & SPAS IS SELLING YOU THE PRODUCT “AS IS” AND MAKES NO REPRESENTATIONS AND/OR WARRANTIES WITH RESPECT TO THE PRODUCT INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HOT SPRINGS POOLS & SPAS, ITS PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, MANAGERS, DIRECTORS, OFFICERS, EQUITY OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUPPLIERS, DISTRIBUTORS OR LICENSORS (COLLECTIVELY, THE “HOT SPRINGS POOLS & SPAS PERSONS”) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, BUSINESS INTERRUPTION, DAMAGE TO BUSINESS REPUTATION, OR LOSS OF USE) ARISING: (A) OUT OF THE USE OF THE PRODUCT; (B) OUT OF ANY CLAIMS YOU HAD, HAVE, OR MAY HAVE, KNOWN OR UNKNOWN, AGAINST ANY HOT SPRINGS POOLS & SPAS PERSON WHETHER GROUNDED IN TORT OR CONTRACT; OR (C) OTHERWISE; EVEN IF ANY HOT SPRINGS POOLS & SPAS PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3 PURCHASE PRICE LIMITATION. THE MAXIMUM AGGREGATE LIABILITY OF HOT SPRINGS POOLS & SPAS AND THE OTHER HOT SPRINGS POOLS & SPAS PERSONS ARISING OUT OF THE PRODUCT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, TRADE PRACTICES OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY YOU FOR THE PRODUCT.
3.4 Time Limitation. You agree that any legal action brought by you in connection with the product must be commenced within two years after the cause of action accrues, or reasonably could have been discovered, or it shall be deemed waived and irrevocably barred.
SECTION 4 — ACKNOWLEDGEMENTS; RELEASE
4.1 Acknowledgements. You acknowledge and agree that: (a) you are at least 18 years old; (b) you have voluntarily purchased the product; (c) you will use the product only in accordance with the instructions provided with the product; (d) despite the Company’s best efforts to minimize the risk of harm to you, your use of the product may (i) pose the risk of physical injury to you and (ii) cause you to become partially or totally disabled and/or incapable of performing any gainful employment or having a normal social life.
4.2 Release. IN LIGHT OF THE ACKNOWLEDGEMENTS AND AGREEMENTS IN SECTION 4.1, YOU HEREBY: (I) ASSUME ALL RISKS THAT YOU MAY FACE IN THE COURSE OF USING THE PRODUCT INCLUDING, BUT NOT LIMITED TO, RISKS OF PHYSICAL INJURY OR ILLNESS ARISING FROM SUCH USE; AND (II) FOR YOU AND YOUR HEIRS, TRUSTEES, GUARDIANS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS, EXPRESSLY AND IRREVOCABLY RELEASE HOT SPRINGS POOLS & SPAS AND ALL OTHER HOT SPRINGS POOLS & SPAS PERSONS FROM ANY AND ALL CLAIMS THAT YOU MIGHT HAVE ARISING FROM ANY PERSONAL OR OTHER INJURY, INCLUDING PHYSICAL INJURY, LOSS OR DAMAGE TO PROPERTY, OR OTHER LOSS OR HARM OF ANY KIND, THAT YOU MIGHT SUFFER OR INCUR IN CONNECTION WITH THE USE OF THE PRODUCT, INCLUDING LIABILITY FOR NEGLIGENCE ON THE PART OF HOT SPRINGS POOLS & SPAS AND ANY OTHER HOT SPRINGS POOLS & SPAS PERSONS.
SECTION 5 — GOVERNING LAW; ARBITRATION
PLEASE READ THIS SECTION CAREFULLY
5.1 Governing Law. Any controversy or claim concerning or in relation to the product shall be governed by, construed and interpreted in accordance with the laws of the State of South Carolina without regard to its conflicts of law principles that would require the application of the laws of another jurisdiction.
5.2 Arbitration. Any controversy or claim arising out of or relating to the product shall be submitted to final and binding arbitration in Greenville, SC in accordance with the commercial rules of the American Arbitration Association (the “AAA”). The arbitration shall be before a single arbitrator. If not mutually agreed upon, the arbitrator shall be selected according to AAA rules from a list, prepared by AAA, of persons having expertise in the subject matter. Judgment upon the award may be entered in any court having jurisdiction thereof. This provision is self-executing, and in the event that any relevant person or entity fails to appear at any properly noticed arbitration proceeding, an award may be entered against such person or entity notwithstanding said failure to appear. Hot Springs Pools & Spas and you shall split all costs of the arbitrator(s) equally. PLEASE NOTE THAT NEITHER YOU NOR ANY HOT SPRINGS POOLS & SPAS PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. NOTHING IN THESE TERMS AND CONDITIONS SHALL PROHIBIT YOU FROM FILING A CLAIM IN SMALL CLAIMS COURT IN YOUR LOCAL JURISDICTION IN AN INDIVIDUAL CAPACITY.
5.3 Expenses. In the event a controversy or claim between the you (on the one hand) and Hot Springs Pools & Spas or any other Hot Springs Pools & Spas Person (on the other hand) relating to the product, the prevailing party(ies) shall be entitled to receive reimbursement for all associated reasonable costs and expenses (including, without limitation, attorneys’ fees) from the other party(ies), including without limitation on appeal and in insolvency and any other legal proceeding.
SECTION 6 — MISCELLANEOUS
6.1 Severability. Any arbitrator or court enforcing the terms of these Terms and Conditions is specifically permitted and authorized to modify the provisions contained in these Terms and Conditions in order to make them enforceable. The partial or complete invalidity or unenforceability of any provision of these Terms and Conditions shall not affect the validity or enforceability of any other provision of these Terms and Conditions.
6.2 Modification of Agreement. No addition to or modification of these Terms and Conditions shall be binding on you, Hot Springs Pools & Spas or any other Hot Springs Pools & Spas Persons unless reduced to writing and executed by you and an authorized representatives of Hot Springs Pools & Spas.
6.3 Entire Agreement. These Terms and Conditions, the product and the instructions included with the product comprise all the terms, conditions and agreements with respect to the subject matter hereof and thereof and supersedes all previous negotiations, proposals, or agreements of any nature whatsoever.
6.4 Captions and Headings. Captions and headings contained in these Terms and Conditions have been inserted solely for the convenience of reference and in no way define, limit or describe the scope or substance of any provisions of these Terms and Conditions.