INFORMATION WE COLLECT
Hayward Luxury, Inc. collects information on our users in various ways, such as, by your voluntary submissions, from your participation in our Services, from third parties and through cookies and other tracking technologies. Information that Hayward Luxury, Inc. collects includes:
Upon registration for our Services, Hayward Luxury, Inc. may ask for your personal information, such as your name, address, date of birth, gender, email address, payment information, and possibly information relating to certain support or customer service issues. In most cases, we need this information to provide you with a product or service that you have requested from us via the Services. We might also collection personal information about you from a third party, for instance, if a Services allows the third party to refer someone to our Services as part of an active promotion.
SUBMISSION OF REVIEWS, RATING AND COMMENTS
We collection information that you voluntarily provide to us as part of our Services, including messages, posts, comments, ratings, reviews, responses, and the like, that you submit through our Services (“User Content”). Hayward Luxury, Inc. may share your User Content with others. If you do not want your User Content shared with others, you should not submit it. Once you have submitted User Content, we reserve the right to publish it in any medium to others.
We may collect general, non-personal, statistical or demographic information about use of our Services, such as how many users visit a specific page on our website, how long they stay on that page and what hyperlinks they click on, if any. This information forms a generic overview of our users, and allows us and third parties to improve our Services based on user behavior. We collect this information through the use of “cookies” and other tracking technologies discussed below.
OTHER TRACKING TECHNOLOGIES
When you visit our website we may collect information such as Internet domain and host names; Internet protocol (IP) addresses; browser software; device type; operating system type; clickstream patterns, location information and date and time that our Services are accessed. We may link this information to Personal Information we collect. Again, we use this information to help us improve and better customize our Services for you and for other users of our Services.
USE OF YOUR INFORMATION
Hayward Luxury, Inc. may share your Personal Information with its subsidiaries and/or affiliates. We, along with those subsidiaries and affiliates, may use information that we have collected in the following ways: 1) For internal business review; 2) To improve our Services; 3) To fulfill the purchase of products and services requested by you; 4) To inform you about products, services and promotions available to you; 5) To solicit your reviews and/or ratings of our Services; 6) To comply with applicable laws, statutes and regulations; 7) To enforce our terms, your rights and the rights of others 8) To verify your identity, respond to your requests and communicate with you; 9) For site maintenance and administration; and 10) For other reasons disclosed to you at the time you provided your information.
You cannot unsubscribe from receiving certain essential e-mails/notifications regarding, for example, account status or billing. You may also opt-in or opt-out, as the case may be, of the collection and use of certain information by making the appropriate on-screen selection. You may also delete or modify your information by sending an e-mail to firstname.lastname@example.org or by writing us at Hayward Luxury, Inc. Legal Department, c/o Chadbourne & Park, LLP 30 Rockefeller Plaza, New York, NY 10112 specifying the reason for your request such as “delete” or “modify”. You understand that certain Services may no longer be available to you if you choose to cancel your registration, delete your information or opt-out of the collection and use of your information.
Our shopping cart and order forms are encrypted using industry-standard technology to keep your personal and financial data confidential. Information you provide and we collect is stored on servers that are located in secure locations and our database is heavily monitored and safeguarded to prevent misuse from outside operators. Firewalls and intrusion detection services are constantly updated and monitored to ensure all your information is always secured. However, since no security system in impenetrable, we cannot guarantee that are databases are 100% secure. We also cannot assure you that information that you provide will not be intercepted when being transmitted to us over the Internet.
Your Personal Information may be transferred to, and maintained on, computers located outside of your state, province or country where the privacy laws may be different from those where you live. If you are located outside of the United States and choose to provide information to us, you should understand that Hayward Luxury, Inc. may transfer your Personal Information to the United States for processing and storage. By submitting your Personal Information to us, you consent to your Personal Information being transferred to, processed, and stored in the United States.
Our Services are not meant for use by any person under the age of 18 without the supervision of a parent or guardian 18 years of age or older. Any person under the age of 18 may only use our Services under the authority and supervision of a parent or guardian of 18 years or older. Our Services are not directed to children under 13 years of age, and Hayward Luxury, Inc. will not knowingly collect Personal Information from any child under the age of 13. If we become aware that we have unknowingly collected Personal Information from a child under the age of 13, we will make commercially reasonable efforts to delete such information from our databases.
DISCLOSING PERSONAL INFORMATION TO THIRD PARTIES
We will not disclose your Personal Information with third parties, except in the following cases:
- We have your permission to make the disclosure
- The disclosure is consistent with the purpose for which the Personal Information was obtained
- To a financial services provider in order to fulfill the purchase of products and/or services you requested
- To hosting partners and other parties who assist us in designing and operating our Services, executing services (for instance, promotions and prize fulfillment) or to help us analyze collected data
- The disclosure is related to the sale or other disposition of all or part of our business or assets
- For our own marketing purposes or, with your permission, for the marketing purpose of third parties
- The disclosure is necessary or advisable, in our discretion, to establish or maintain a legal claim, or comply with any applicable law, regulation, subpoena, court order or request of a governmental authority
Before sharing your information with third parties, Hayward Luxury, Inc. uses commercially reasonable efforts to ensure that each third party is under a legal obligation to maintain the confidentiality of your information and can only use your information for the limited purpose(s) for which such third party is engaged.
We may disclose aggregate user data in order to describe the use of our Services to our existing and potential business partners or other third parties. We may also share aggregated demographic and preference data to third parties to enable the provision of targeted promotions.
LINKS TO THIRD PARTIES
A COOKIE, also known as an HTTP COOKIE, WEB COOKIE, or BROWSER COOKIE, is a small piece of data sent from a website and stored in a user's web browser while the user is browsing that website. As most websites do, we employ cookies in certain areas of our site to allow us to provide information to make your online experience more convenient. For example, when you return to our site after logging in, cookies provide information to our site so that the site will remember who you are on future visits, speeding up or enhancing your experience. This helps in styling the content you experience on our site as well as keeping items you may have added within our shopping cart.
HOW YOU CAN CONTACT US
You have fourteen (14) days from receiving your purchase to return merchandise for store credit or exchange for the full amount of your purchase. If the original item is of greater value than the exchange, store credit will be issued for the difference. Merchandise must be in new unused condition with all of the tags and packing it came with. Hayward Luxury, Inc. will not accept any merchandise that has been used, damaged, engraved or altered from its original condition in any way. Hayward Luxury, Inc. has sole discretion in determining the condition of the merchandise returned.
Please send your return in the original packaging to:
Hayward Luxury, Inc.
33 E. 33rd Street, Suite 1200
New York, NY 10016
• Note the quantity and reason(s) for return on your package list.
• Pack your return securely, in the original package and include your completed packing list.
LAST UPDATED: DECEMBER 4, 2013
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THESE TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THESE TOU, INCLUDING ANY MODIFICATIONS THAT HAYWARD LUXURY, INC. MAKES FROM TIME TO TIME.
2. CHANGE/TERMINATION OF SITE/SERVICE
Hayward Luxury, Inc. may make changes to the Site and/or the Service at any time. You understand that Hayward Luxury, Inc. may discontinue or restrict your use of the Site and/or Service for any reason or no reason (including, but not limited to, any violation of these ToU) with or without notice. Hayward Luxury, Inc. reserves the right to deny access to the Site and/or the Service to any person at Hayward Luxury, Inc.’s sole and absolute discretion. Hayward Luxury, Inc. may stop offering and/or supporting the Service at any time.
3. ORDERS AND PAYMENT TERMS
After you place an order we will review the information you provided for validity by verifying your method of payment, billing and/or shipping address. Orders will not be accepted for delivery outside of the United States. We may contact you (via email or phone) if additional information is required to accept your order. Invalid order information will result in delays processing your order. For Product purchases, your receipt of an order confirmation does not constitute Hayward Luxury, Inc.’s acceptance of your order. Without prior notification, Hayward Luxury, Inc. maintains the right to limit the Product order quantity and the right to refuse to sell Products to any customer for any reason or no reason at all. [Hayward Luxury, Inc. reserves the right not to sell to resellers. If your order is canceled, we will attempt to notify you using the e-mail address you have given us with the order. You will not be charged if your order is canceled. If your payment method has already been charged for an order that is later canceled, Hayward Luxury, Inc. will issue you a refund.
Hayward Luxury, Inc. does sell products through its Web Store for children, but only to adults, who can purchase with a credit card or other permitted payment method as described above. If you are under 18, you may use the Web Store only with involvement of a parent or guardian.
We accept various payment methods for Product purchases through our Web Store, including various credit cards and debit cards. We will bill your payment method when you place an order for a Product through the Service. Hayward Luxury, Inc. will not fulfill any Product order without authorization validation of your purchase from your payment method.
You acknowledge and agree that any offers made available through the Service are subject to change at any time and from time to time. Additionally, we have endeavored to be as accurate as possible in describing and displaying the colors and other features of the Products made available for purchase through the Service; however, there is no warranty or guarantee that the colors, sound quality, product descriptions or other content of the Service is accurate, complete, reliable, current, or error-free.
We will ship the Products you purchase via the shipping method of our choice, on such other terms and conditions (such as applicable shipping and handling fees) that we may disclose to you at the time of your purchase. We do not guarantee the services of any shipping service and delivery dates and times are not guaranteed. During busy times, such as holiday periods, and periods of inclement weather, there can be additional processing and shipping delays. If there is a problem with a delivery, including, but not limited to, damage, loss or late delivery, you agree to hold shipping service liable and to contact Hayward Luxury, Inc. Consumer Support to resolve the issue. You agree not hold [Hayward Luxury, Inc. liable for any shipping issues. Most package carriers have a short time frame in which to initiate claims. We recommend that you inspect your package for damage immediately upon arrival. If there is a problem, contact the delivery service immediately to resolve any problems. All merchandise is shipped F.O.B. from any place we designate the merchandise leave. At our discretion, we may choose to halt, or alter, the delivery of an order, even though it is in the hands of a delivery agent or shipping company. We may do this as a customer service or in cases where we suspect fraud. You agree to pay any additional charges that may arise due to circumstances in which we take this action.
Products purchased from haywardluxury.com are easily returned within seven (7) days of receipt of shipment in accordance with our Return Policy. These Products must be in new condition with original packaging and accessories. Products missing the serial number or UPC cannot be accepted; refunds will not be issued for such items. You can return such items by contacting us at 212-686-1955.
RESTRICTIONS AND CONDITIONS OF USE
USE OF SITE AND SERVICE.
Hayward Luxury, Inc. provides you a personal, revocable, non-exclusive, non-transferable license to use the Site and Service conditioned on your continued compliance with these ToU. Hayward Luxury, Inc. permits you, on an occasional and irregular basis, to print and download Site Content (defined below) solely for your personal, non-commercial use, provided that you do not obscure, alter, remove or delete any copyright or other proprietary rights contained in or associated with the Content. You agree not to license, create derivative works from, transfer, sell or re-sell any information, Content, or services obtained from the Site. Hayward Luxury, Inc. reserves the right to add or remove information, Content or services from the Site at any time at its sole discretion.
NO VIOLATION OF LAWS.
You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
MISUSE OF SITE AND/OR SERVICE.
You may not connect to or use the Site and/or Service in any way not expressly permitted by these ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person’s use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding Hayward Luxury, Inc. and/or the Service; or (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
NO COMMERCIAL USES.
You agree that you will not use the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site or Service.
NO DATA MINING OR HARMFUL CODE.
You agree that you will not (a) obtain or attempt to obtain any information from the Service; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Site or the Service.
The Site and Service contains services and features that are available to or through certain mobile devices. Your carrier’s normal rates and fees apply. We do not guarantee that any or all services will work with or be accessible through all carriers or devices.
LINKS FROM THE SITE.
The Site may contain links to websites operated by other parties. Hayward Luxury, Inc. provides these links to other websites as a convenience, and use of these websites is at your own risk. The linked websites are not under the control of Hayward Luxury, Inc., and Hayward Luxury, Inc. is not responsible for the content available on the other websites. Such links do not imply Hayward Luxury, Inc.’s endorsement of information or material on any other website and Hayward Luxury, Inc. disclaims all liability with regard to your access to and use of such linked websites.
LINKS TO THE SITE.
Unless otherwise set forth in a written agreement between you and Hayward Luxury, Inc., you must adhere to Hayward Luxury, Inc.’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Hayward Luxury, Inc.’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false impression that your organization or entity is sponsored by, affiliated with, or associated with Hayward Luxury, Inc., (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking site, and (iv) Hayward Luxury, Inc. reserves the right to revoke its consent to the link at any time and in its sole discretion.
The Service includes features that operate in conjunction with certain third party social networking websites that you visit (“SOCIAL NETWORK FEATURES”). While your use of the Social Network Features is governed by these ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for Hayward Luxury, Inc. to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT HAYWARD LUXURY, INC. WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
Hayward Luxury, Inc.TM and the Hayward Luxury, Inc. logo are trademarks/service marks of Hayward Luxury, Inc.. Unauthorized use of any Hayward Luxury, Inc. trademark, service mark or logo may be a violation of federal and state trademark laws.
COPYRIGHTS AND OTHER RIGHTS.
All material and information contained on the Site and included in the Service, including without limitation, text, images, layout, design, software and downloadable software applications, audio and video files and databases (collectively, “CONTENT”), are the exclusive property of Hayward Luxury, Inc. or its suppliers. Hayward Luxury, Inc. and its suppliers retain all right, title and interest in and to the Content including, but not limited to, all copyrights, trade secret rights, trademark rights, database rights and all other intellectual property rights of any kind or nature under the laws of the United States, other countries, international conventions, and other applicable laws. Except as specifically and explicitly provided elsewhere in these ToU, Hayward Luxury, Inc. does not grant you any right, express or implied, in any Content.
Hayward Luxury, Inc. respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. Hayward Luxury, Inc. maintains a policy of terminating, in appropriate circumstances, users who use the Site and/or Service to infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; an
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please contact email@example.com
The Site and the Service are operated by Hayward Luxury, Inc. in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
Hayward Luxury, Inc. does not claim ownership of any materials you submit, upload, post or otherwise provide to the Site (the “SUBMISSIONS”). At Hayward Luxury, Inc.’s sole discretion, such Submissions may be included in the Service in whole or in part or in a modified form. With respect to such Submissions, you grant Hayward Luxury, Inc. a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such Submissions, or any part thereof, in any form, technology or media now known or later developed. You hereby represent, warrant and covenant that any Submissions you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 9. You also grant us the right, but not the obligation, to use your name, likeness, and identity in connection with your Submissions. You also grant other users of the Site permission to access, use, record, reproduce, distribute, publicly display, publicly perform, and prepare derivative works of your Submissions in any medium (whether now known or later developed). You voluntarily waive all moral rights you may have in your Submissions. We do not guarantee any confidentiality with respect to any of your Submissions, and it is your responsibility to protect any rights that you may have in your Submissions. Please also be aware that any personally identifiable information that you choose to include in your Submissions for publication on the Site will not be protected. If HAYWARD LUXURY, INC. has provided you with any free or discounted product or other item of value (other than sales and discounts available to the general public), you agree to disclose the value received in your Submissions in compliance with Section 5 of the Federal Trade Commission Act.
Hayward Luxury, Inc. has the right, but not the obligation, to screen, monitor, record, edit, reject or remove any of your Submissions from time to time without notice or further permission from you, to the fullest extent permitted by law. Any information obtained by monitoring or recording may be subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity.
The Site and the Service are not directed toward children under 13 years of age nor does Hayward Luxury, Inc. knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Hayward Luxury, Inc.
DISCLAIMER OF WARRANTIES
THE SITE, PRODUCTS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. HAYWARD LUXURY, INC. MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. HAYWARD LUXURY, INC. DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAYWARD LUXURY, INC., ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE ”RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESS TO OR USE OF THE SITE, PRODUCTS AND/OR SERVICE, OR YOUR INABILITY TO ACCESS OR USE THE SITE OR SERVICE, EVEN IF HAYWARD LUXURY, INC. AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF HAYWARD LUXURY, INC. OR ANY OF THE RELATED PARTIES EXCEED THE LESSER OF (I) US$100.00 OR (II) THE AMOUNT YOU PAID US FOR USE OF THE SITE OR SERVICE DURING THE SIX (6) MONTHS PRIOR OT THE TIME THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE.
HAYWARD LUXURY, INC. WILL NOT BE RESPONSIBLE OR LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY LOSS, LIABILITY, EXPENSES OR DAMAGES INCURRED IN CONNECTION WITH THE SERVICE OR THE PURCHASE OF PRODUCTS, TO THE EXTENT CAUSED BY OR RESULTING FROM (1) YOUR ACTS, DEFAULTS OR OMISSIONS; (2) YOUR VIOLATION OF ANY OF ANY TERM, CONDITION, REPRESENTATION OR WARRANTY CONTAINED IN THIS TOU; (3) YOUR FAILURE TO PROVIDE AN ACCURATE SHIPPING ADDRESS OR OTHER INFORMATION THAT YOU ARE ASKED TO PROVIDE IN CONNECTION WITH THE SALE OF THE PRODUCTS; (4) ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING THIRD PARTIES CONTRACTED BY HAYWARD LUXURY, INC.; OR (5) NONDELIVERY, MISDELIVERY OR LATE DELIVERY OF PRODUCTS OR PRODUCTS LOST OR DAMAGED IN SHIPMENT.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for certain types of damages, in such states or jurisdictions, the liability of Hayward Luxury, Inc. and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold Hayward Luxury, Inc. and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site and/or the Service, your negligent or intentional misuse of the Products or any breach by you of these ToU or any other policies that Hayward Luxury, Inc. may issue for the Site and/or Service from time to time.
GOVERNING LAW; JURISDICTION
This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of NEW YORK, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 15 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, the Products and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within NEW YORK, NEW YORK and you agree to submit to the personal jurisdiction and venue of such courts.
You and Hayward Luxury, Inc. agree that, except as provided in the “Exceptions to Arbitration” section below, all disputes, controversies and claims related to these ToU (each a ”CLAIM”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the ”JAMS RULES”) and under the terms set forth in these ToU. In the event of a conflict between the terms set forth in this Section 15 and the JAMS Rules, the terms in this Section 15 will control and prevail.
Except as otherwise set forth in the “Exceptions to Arbitration” section below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these ToU, (i) you and Hayward Luxury, Inc. may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND HAYWARD LUXURY, INC. WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will take place in your hometown area if you so notify Hayward Luxury, Inc. in your notice of arbitration or within ten (10) days following receipt of Hayward Luxury Inc.’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in NEW YORK, NEW YORK, unless the parties agree to video, phone and/or internet connection appearances.
You and Hayward Luxury, Inc. agree that any arbitration shall be limited to the Claim between Hayward Luxury, Inc. and you individually. YOU AND HAYWARD LUXURY, INC. AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
EXCEPTIONS TO ARBITRATION.
You and Hayward Luxury, Inc. agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Hayward Luxury, Inc.’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
This ToU may only be revised in a writing signed by Hayward Luxury, Inc., or published by Hayward Luxury, Inc. on the Site.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Hayward Luxury, Inc. as a result of these ToU or your use of the Service.
Hayward Luxury, Inc. may assign these ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Hayward Luxury, Inc.’s prior written consent, and any unauthorized assignment by you shall be null and void.
If any part of these ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
In the event any litigation or arbitration is brought by either party in connection with these ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
Our failure to enforce any provision of these ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of these ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under these ToU shall be in writing and addressed to: Hayward Luxury, Inc. 33 3. 33rd Street, Suite 1001, New York, NY 10016 ATTN: Legal Department.
You hereby agree that Hayward Luxury, Inc. would be irreparably damaged if the terms of these ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.