Terms and Conditions

Effective April 15, 2020

Welcome to FloWater.

These Terms and Conditions govern your purchase and use of the FloWater family of water purification products, related services, and the FloWater website. By purchasing our Products, or using any of our Services (as these terms are defined below), you are agreeing to these Terms and Conditions. Please read these Terms carefully INCLUDING THE BINDING ARBITRATION SECTION SET FORTH IN SECTION 13 (DISPUTE RESOLUTION) BELOW as they affect your legal rights. If you don’t agree to be bound by these Terms, do not use any of our Services or purchase our Products.  

  • We’ll refer to the FloWater website (https://www.home.drinkflowater.com or another designated URL and related domains) as the “FloWater Site,” and all the services we provide, individually and collectively, in connection with the FloWater Site and Products, including the FloWater Site itself, Product support and filter replacement as the “
  • We’ll refer to the FloWater family of water purification stations and related products available through the FloWater Site and third party distributors as the “Products.”
  • We’ll refer to these Terms and Conditions as the “Terms,” and any additional terms through which you order a Product or Service as the “Order.” We’ll refer to the Terms and Orders collectively as the “Agreement.”
  • We’ll refer to FloWater as “we,” “us,” or “FloWater.”
  • We’ll refer to you, an entity or individual purchasing the Products or Services as “you” or “User.”
  • In this Agreement, the words “include” and “including” will not be construed as terms of limitation.

The Agreement is a legally binding contract between you and FloWater, Inc. To access the FloWater Site and Services, you must be able to enter into a legally binding contract, and represent that you are at least 18 years old or, if a business, duly organized and legally in good standing.

Our collection and use of personal information in connection with your access to and use of the Services is described in our Privacy Policy.

 

1. UPDATES TO THE AGREEMENT

We may update the Agreement from time to time. If we materially update any portion of the Agreement, we will notify you, at the email address provided in your Account profile, or other reasonable means (for example, by posting a notice on the FloWater Site) before the date the update becomes effective. We will also post the updated Agreement in its original location marked with the new date. Changes will not be retroactive. Your continued use of any Services after we publish or send a notice about our changes to these Terms means that you are consenting to the updated Terms.

 

2. SERVICES 

Your Right to Use the Services 

We make the FloWater Site available as a resource for information about FloWater and our Products and Services, in addition to providing our visitors with opportunities to share input and request additional information about our Products and Services. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print any information, text, links, graphics, photos, audio, videos, and all other forms of data or communication that you can view on, access or otherwise interact with through the Services (the “Content”) solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

 

Your Account

To access certain Services available to our customers, you must register for an account on the FloWater Site (an “Account”). You agree to: (a) not share your Account or transfer any part of it to anyone else; (b) provide accurate, current and complete information during the registration process and keep your Account up-to-date; and (c) keep your password secure and confidential. We reserve the right to refuse registration of, or cancel passwords that we deem inappropriate. You agree to notify us immediately of any unauthorized use of your Account and are responsible for anything that happens through your Account prior to closing it or reporting misuse to us.

You may control your Account profile and how you interact with the Services by changing the settings in your Account. You consent to our using the email address you provide in your Account to send you Services-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. We may also use your email address to send you other messages, such as changes to Services features, special offers, or newsletters related to our Products or Services. If you do not want to receive such email messages, you may unsubscribe as directed in the applicable communication. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

 

Services Updates

We may enhance, modify or discontinue the Services (including any Products) from time to time but will provide you with notice unless such changes are of minor nature or otherwise have no material effect on our contractual obligations to you. To the extent we make available any new or different features, functionality or enhancements to the Products or Services, we will market these separately and may require the payment of additional fees. You agree that we shall not be liable to you or any third party for any FloWater actions in keeping with this section.

 

Third-Party Services

Certain elements of the Services may be provided through Third Party Services providers, for example, a third party installer of a FloWater Product. Your use of any such Third Party Service is subject to the terms governing such service. We are not responsible for any issues caused by Third Party Services providers, such as installation issues, and make no representation or warranty regarding Third Party Services, whether or not we recommend, certify, or otherwise approve the applicable Third Party Service provider. Your dealings with or participation with Third Party Services providers are solely between you and the applicable Third Party Service provider. You agree that we are not responsible for any loss or damage of any sort relating to your dealings with Third Party Services, and that your Agreement and our Privacy Policy do not apply to your use of such Third Party Services.

 

Links to Third Party Websites or Resources

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.

 

3. PRODUCTS

Order Acceptance and Cancellations

We reserve the right, at our sole discretion, to refuse or cancel any Order for any reason, for example, due to limitations on quantities available for purchase, issues with our Product, errors or inaccuracies in our pricing information, or problems identified by our credit and fraud avoidance department. We will contact you if all or any portion of your Order is canceled. If your Order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge.

 

Delivery

We will make commercially reasonable efforts to deliver the Products within the timelines estimated in the Order. You understand that all scheduled shipment dates and estimated shipment dates are estimates only. We’ll make reasonable efforts to meet the scheduled shipment dates, but in no event will we be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. Title and risk of loss for Products purchased by you through our Services pass to you upon our delivery of the Products to the carrier. In case of any unforeseen delay, we will keep you updated and communicate progress using the email address associated with your Account. In the event of inconvenience due to any unforeseen delay in the timeline, please inform us at customerservice@drinkflowater.com and we will make reasonable efforts to resolve your issue.

 

Product Refunds

To receive a Product refund or exchange, you must notify us at customerservice@drinkflowater.com within thirty (30) days of Product installation. We will arrange for the removal and shipping of the Product, at your expense. The Product must in the same condition you received it, with no damage and fully functional, and may require inspection before we can provide a refund or exchange. Any refund will be issued to you within thirty (30) business days of equipment removal.

 

Product Warranty 

We warrant that for a period of the longer of (a) one (1) year from installation; or (b) the shortest period allowed under applicable local, state, federal, and international laws, rules, and regulations (“Applicable Law”), a Product will be free from defects in materials and workmanship under normal use in accordance with the documentation provided with the Product. In the event of a Product defect, please visit us at customerservice@drinkflowater.com for return instructions. Return shipping charges may apply except where prohibited by Applicable Law.

Our sole obligation under this Product warranty will be, at our option, to repair or replace the Product. Any repaired or replaced Product will be warranted for the remaining period of the original warranty. Replacement Products may contain new or refurbished parts.

This warranty does not apply to (a) Products damaged by misuse (e.g., by attempting to flush solids down the drain of the Product); (b) any activity occurring outside of the point of entry of water into the Product to the point of exit; (c) accident, electrical disturbance or normal wear and tear; (d) issues caused by Third Party Services such as Product maintenance or installers; (e) Products where the original factory serial number has been removed, defaced or altered; or (f) Products purchased from an unauthorized distributor. The Product is not designed for or warranted against damage from use in areas subject to extreme temperature, excessive moisture, or other inherently hazardous environments.

 

4. FEES AND PAYMENT TERMS

Unless otherwise provided in your Order, all fees for Products and Services are payable by credit card or other payment method permitted by us from time to time. You authorize us to charge your credit card or bank account at the time of your Order (unless otherwise arranged) for all fees payable, at the start of the applicable billing period specified in your Order (e.g., monthly) to the extent you are under a pre-approved payment plan. You further authorize us to use a third party to process payments, and you consent to the disclosure of your payment information to such third party and any third party payment provider’s terms and conditions and privacy policy in connection with your online payment transaction. Except as otherwise specified in the applicable Order, fees are non-refundable, including in the event of an Account suspension or termination pursuant to Section 12.A. (Suspension and Termination) below.

You are responsible for all taxes, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (“Taxes”) imposed on the transaction or the delivery of Products and Services, except Taxes based on our net income.

 

5. USER DATA

License to User Data

You own all right, title and interest in and to any and all information, data or other content you provide to us or that we collect on your behalf, including through Third Party Services providers, to provide the Products or Services (the “User Data”). You grant us, our Affiliates, and our Third Party Services providers a limited, non-exclusive, royalty-free, worldwide, sublicenseable license to use and access User Data as necessary to provide the Products and Services to you, solely for your benefit and subject to the terms of this Agreement, including our confidentiality obligations, and to enforce our rights under this Agreement. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity (with “control” meaning direct or indirect ownership or control of more than 50% of the voting interests of the subject entity). We shall have no right to sublicense or resell User Data, except, however, that you agree that we may collect, analyze and use De-Identified Data derived from User Data for, among other things, gathering metrics about our Products and Services and for internal research, development, marketing and analytic purposes. “De-Identified Data” means data in de-identified form, in which all personally identifiable information, including direct and indirect identifiers, has been permanently removed or obscured so the remaining information does not reasonably identify an individual and there is no reasonable basis to believe that the information can be used to identify an individual. You agree that we will have the right, both during and after the term of your Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense and create derivative works of De-Identified Data derived from User Data. We will use commercially reasonable administrative, physical, and technical safeguards to secure User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, given the risks inherent with the internet, we are not responsible or liable for failure to store User Data or other materials you may transmit through the Services, except to the extent required by Applicable Law and as noted in our Privacy Policy

 

Your Responsibility for User Data 

By using the Services, including any products or services that facilitate the sharing of User Data to or from Third Party Services, you understand that you are solely responsible for User Data. As between FloWater and you, you are solely responsible for the accuracy, quality, integrity, and reliability of all User Data, and you assume all risks associated with the User Data, including anyone’s reliance on its quality, accuracy, or reliability, and any risks associated with personal information you disclose. You represent and warrant that you own or have provided or obtained the necessary disclosures, permissions and consents to use, and authorize the use of, the User Data as described herein under Applicable Law.

 

Our Right to Remove User Data 

We have the absolute right to remove or disable access to any User Data on the Services as needed to (a) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure your compliance with the Agreement (or any FloWater policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any User Data that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to you to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake.

 

6. ACCEPTABLE USE OF THE SERVICES

Your permission to use the Services is contingent on your compliance with all Applicable Law, in addition to the following rules.

 

Prohibited Activities

You shall not use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use, including:

  • Accessing any Content available through the Services through any technology or means other than those authorized by us on the FloWater Site, such as by robot, spider, scraper or other automated means or manual process, for any purpose not authorized in the Agreement;
  • Interfering with or compromise the system integrity or security or decipher any transmissions to or from the servers running the FloWater Site, or otherwise causing harm to the FloWater Site, such as attempting to mine information about users of the Services;
  • Attempting to gain unauthorized access to Accounts;
  • Removing, circumventing, disabling, damaging or otherwise interfering with security or other preventive features of the FloWater Site;
  • Using the Services to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
  • Taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
  • Attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
  • Exporting, re-exporting, importing, or transferring any part of the Services except as authorized by United States law, the export control laws of your jurisdiction, and any other Applicable Laws;
  • Commercially exploiting the Services or making the Services available to any third party, other than as otherwise contemplated by this Agreement, or accessing the Services for the purpose of building a similar or competitive product;
  • Copying, translating, creating a derivative work of, reverse engineering, reverse assembling, disassembling, or decompiling the Services or any part thereof; or
  • Partaking in any activity that, in our sole judgment, restricts or inhibits any other person from using or enjoying any aspect of the Services or exposes or may expose any users of the Services to harm or liability of any sort.

 

Prohibited Content

You shall not transmit, store, display, distribute or otherwise make available any User Data or other content through the Services that:

  • Is fraudulent, false, misleading (directly or by omission or failure to update Information) or deceptive;
  • Is defamatory, libelous, harassing, abusive, obscene, sexually explicit, pornographic, vulgar or offensive;
  • Promotes discrimination, bigotry, racism, hatred, harassment or harm against, or is inappropriate towards, any individual or group;
  • Is violent or threatening or promotes violence or actions that are threatening to any person or animal;
  • Promotes illegal or harmful activities or substances;
  • You do not have the permission from the content owner or individuals appearing in the content to post, free of charge;
  • Seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
  • May constitute or contribute to a crime or tort;
  • Contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
  • Creates a risk of any other loss or damage to any person or property; or
  • Violates any other FloWater policy.

 

7. YOUR PRIVACY

We care about your privacy. You understand that by using the Services you consent to the collection, use and disclosure of your personal information and aggregate and/or anonymized data as set forth in our Privacy Policy. Insofar as the User Data or other content submitted by you includes personal information (“Personal Information”), we will only use such Personal Information to provide the Services if such use complies with applicable data protection laws in accordance with our Privacy Policy. You agree not to submit, or cause to be submitted, any User Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number (except as required for Account registration and payment), employment, financial or health information, personal information relating to a resident of the European Economic Area or personal information relating to an individual under sixteen (16) years of age, or any other information which may be subject to additional protections under applicable laws or regulations including, but not limited to, the Gramm-Leach-Bliley Act (GLBA) or the Health Insurance Portability and Accountability Act (HIPAA), the Children’s Online Privacy Protection Act (COPPA), or which could give rise to notification obligations under data breach notification laws, without our prior written approval.

 

8. OWNERSHIP

What We Own

As between you and FloWater, you acknowledge and agree that we (or our licensors) own the Content and the Services, and the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with FloWater, the Products and the Services (with the exception of User Data), which are protected by copyright, trade dress, patent, trademark, and trade secret laws and all other applicable intellectual and proprietary rights and laws. You agree not to remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Products or Services, or on any materials printed or copied from the Services. Except as expressly provided in this Agreement, we do not grant you any express or implied rights in the Services.

 

What You Own 

As between FloWater and you, FloWater acknowledges and agrees that you own the User Data and your copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to your products and services. You grant to FloWater and our third party providers (including Third Party Services providers), under all of your applicable intellectual property rights, a worldwide, non-exclusive, royalty-free, non-transferable, sublicensable license to use, reproduce, distribute, modify, perform and display the User Data solely in conjunction with the provision of the Products and Services under this Agreement.  We agree not to disclose, disseminate, or make available User Data to third parties other than as needed to deliver or install the Products, perform the Services or as otherwise provided in this Agreement. Additionally, to the extent applicable, you grant us the right and license to use your trade names, trademarks, service marks, trade dress, logos and other rights in indicia to identify you as a FloWater customer.

 

Suggestions and Feedback 

We welcome and encourage suggestions for improvements and other feedback related to the FloWater Site, Products or Services. You may submit feedback by emailing us, through the “Contact” section of the FloWater Site, to customerservice@drinkwater.com or by other means of communication. Any feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the feedback, and you irrevocably waive, and cause to be waived, against us or our users any claims and assertions of any moral rights contained in such feedback.

 

9. DISCLAIMERS

EXCEPT AS SET FORTH IN SECTION 3.D. (PRODUCT WARRANTY) ABOVE, THE SERVICES AND PRODUCTS ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND FLOWATER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS, TITLE AND NON-INFRINGEMENT. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE WARRANTY SPECIFIED IN SECTION 3.D. YOUR USE OF THE SERVICES AND THIRD PARTY SERVICES ARE AT YOUR OWN DISCRETION AND RISK. WE MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE SERVICES, OR THE CONTENT ON THE SERVICES. WE ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE FROM THE PRODUCTS OR SERVICES, FOR EXAMPLE, FROM THE FLOWATER SITE’S INOPERABILITY, DEPLETION OF BATTERY POWER OR OTHER IMPAIRMENT OF DEVICES USED TO ACCESS THE FLOWATER SITE, SERVICES UNAVAILABILITY, OR SECURITY VULNERABILITIES. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.

 

MEDICAL DISCLAIMER

THE PRODUCTS ARE NOT INTENDED FOR USE IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS, AND SHOULD IN NO WAY BE CONSIDERED A REPLACEMENT FOR MEDICAL ADVICE AND ACTION IN ORDER TO CURE, TREAT, OR PREVENT DISEASES OF ANY NATURE. Please seek the advice of your qualified heath care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. We do not recommend or endorse any specific physicians, procedures, products (including our Products), opinions or other information that may be included on the FloWater Site or otherwise provided as part of the Services; the same are only for informational purposes. Reliance on any such information, whether provided by FloWater, our content providers, the visitors to the FloWater Site or others, is solely at your own risk.

 

10. INDEMNITY 

To the maximum extent permitted under Applicable Law, you agree to indemnify and hold FloWater, our Affiliates and our employees, agents, affiliates, assigns and licensees harmless from any and all claims, actions, demands, damages, liabilities, regulatory proceedings, costs (including settlement costs) and expenses (including reasonable outside attorneys' fees and costs) arising from or in connection with (a) User Data; (b) use of the Services or Products in combination with any software, hardware, network or system not supplied by us; (c) misuse of the Products (e.g., damage caused by attempting to flush solids down the drain of the Product); (d) any modification or alteration of the Services other than by us; (e) your continued use of the Services after we notify you to discontinue use; (f) your violation of Applicable Law or breach of this Agreement; (g) your access to or use of Third Party Services; or (h) any other party’s access and use of the Services with your unique username, password or other appropriate security code.

CAUTION: The model you have chosen to purchase may have the option to activate hot water. FloWater does not activate the feature.  Activation should occur by customer choice only with full understanding of the dangers of hot water. This hot water feature dispenses hot water immediately at approximately 185°F, which could cause burns. Households with small children or pets, should not dispense hot water while others are in the vicinity of the Refill Station.  In no event will FloWater be held liable for any injury, pain, economic loss, or similar claims caused by the use of the hot water function.

CAUTION- TIPPING HAZARD: Floor models must be installed level and against a wall. Children should not play near nor climb on them. Refill Stations have several safeguards to reduce tipping hazards, though hazards still exist. 1) Leveling feet- Adjusted via customer onsite for stability. Failure to adjust feet to your floors surface can result in an unstable Refill Station 2) Wall Mounting Kit- an optional ability for you to mount the Refill Station to the wall. In no event will FloWater be held liable for any injury, pain, economic loss, or similar claims caused by the improper installation or misuse of the Refill Station tipping over.

 

11. LIMITATION OF LIABILITY

NEITHER FLOWATER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, PRODUCTS OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, PRODUCTS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLOWATER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL FLOWATER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR PRODUCTS EXCEED THE AMOUNTS YOU HAVE PAID TO FLOWATER FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.

 

12. TERM AND TERMINATION

Termination and Suspension

We may temporarily or permanently suspend or terminate your access to the Services in the event that we suspect in good faith that you are engaged in any conduct in violation of this Agreement, have failed to make payments when due, or for any other reason at our sole discretion, at any time and without notice to you, except as otherwise specified herein.

 

Effect of Termination. 

In the event that we permanently suspend your Account during a Subscription Term pursuant to Section 12.A. (Termination and Suspension) above, you are not entitled to a restoration of your Account or any of your User Data. If we have suspended your Account, you may not register a new Account or access and use the Services through an Account of another user. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.

 

13. DISPUTE RESOLUTION

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

Initial Dispute Resolution 

We are available by email at customerservice@drinkflowater.com to address any concerns you may have regarding the Products or your use of the Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

 

Agreement to Binding Arbitration

If we do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is resolved, then either you or we may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your purchase and use of the Products or Services shall be finally settled by binding arbitration administered on a confidential basis by AAA, in accordance with the AAA Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of your Agreement, including, but not limited to, any claim that all or any part of your Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act.

You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.

 

Class Action and Class Arbitration Waiver 

You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

Exceptions 

Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief (a) in a small claims court for disputes or claims within the scope of that court’s jurisdiction; and (b) for any disputes relating to intellectual property rights, obligations, or any infringement claims.

 

30 Day Right to Opt-Out 

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out by emailing us at customerservice@drinkflowater.com. The notice must be sent within thirty (30) days of your receipt of the Product or first use of the Services; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

 

Term for Cause of Action 

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to purchase or use of the Products or Services, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

Exclusive Venue for Litigation 

You and we expressly consent to exclusive jurisdiction in of the federal and state courts located in the City and County of Denver, Colorado, U.S.A., for any litigation other than small claims court actions. In the event of litigation relating to this Agreement or a Product or Service, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.

 

14. CHOICE OF LAW 

This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to conflicts of law principles. 

 

15. COMPLIANCE WITH LAWS

FloWater and you recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Products and Services addressed in this Agreement do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement.

 

16. EXPORT POLICY AND RESTRICTIONS

You acknowledge that the Products and Content may include technology and software, which are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the Products are manufactured and/or received. By purchasing Products or downloading or using technology or software through or from our Services, you agree to abide by the applicable laws, rules and regulations - including, but not limited to the Export Administration Act and the Arms Export Control Act - and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any Products, you agree that you will not use or provide the Products to any person including yourself who is forbidden from receiving the Products under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You agree to defend, indemnify and hold FloWater and its officers, directors, employees, agents and affiliates harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.

 

17. FORCE MAJEURE

Neither FloWater nor User will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, boycott efforts, pandemics, fires, floods, freezes, earthquakes, accidents, war (whether or not declared), revolution, riots, insurrections, acts of God, acts of government (including without limitation any agency or department of the United States of America), acts of the public enemy, scarcity or rationing fuels or vital products, inability to obtain materials or other causes which are reasonably beyond the control of the defaulting party; provided such failure could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing party through the use of commercially reasonable alternate sources, workaround plans or other means. In such event, the non-performing party will be excused from further performance for as long as such circumstances prevail; provided the non-performing party provides prompt written notice of such circumstances to the other party and such party continues to use commercially reasonable efforts to recommence performance or observance without delay; provided further, however, in the event such force majeure event continues for longer than thirty (30) calendar days, the other party shall be entitled, but not obligated, to terminate the Agreement and/or any outstanding Order without penalty.

 

18. GENERAL TERMS

This Agreement (including each Order) contains the entire understanding between FloWater and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. We reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. In the event of a conflict between the terms of these Terms and an Order, the terms of the Order shall control, but only as to that Order. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. This is a non-exclusive arrangement.

 

19. INFORMATION OR COMPLAINTS

If you have a question or complaint regarding the Services, please send an e-mail to customerservice@drinkflowater.com. You may also contact us by writing to 4045 Pecos Street, Denver Colorado 80211, or by calling us at (877) 772-7775.  Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

QUESTIONS/HELP

If you have any questions about this Agreement, please email us at customerservice@drinkflowater.com.