These Terms of Sale and Use (Terms) describe the WaterGuru, Inc. (WaterGuru, we, us, our) Pool Water Treatment System (WaterGuru System) and your rights and obligations as a customer. Please read them carefully.
1. You are purchasing, and we are supplying you with a WaterGuru System for use with your residential pool. The WaterGuru System will help you to control your pool’s water chemistry which is essential to achieve proper pool sanitation and clear water. The WaterGuru System relies on four components: the WaterGuru Dispenser (Dispenser); the WaterGuru measurement pad reader (Sensor) – which includes a water test cartridge (Test Cartridge); the WaterGuru chemicals – WaterGuru chlorinating granules in a bag, a WaterGuru pH drop bottle containing formulated acid, and other manually dispensed standard pool chemicals that may be required to bring your water into balance (Water Chemicals); and, the WaterGuru software application (App) that can be operated from select web browsers and mobile devices. The App is not sold to you, but instead, subject to the licensing terms from WaterGuru (App Terms) that you can accept by downloading the App from authorized distibutors, such as the Apple App Store and Google Play. and agreeing to comply with the terms. Instructions for the use of the WaterGuru System are contained in a user guide embedded in the App (User Guide).
2. In addition to covering your purchase of the WaterGuru System, these Terms apply to your purchase of additional WaterGuru System products that you consume using the WaterGuru System, such as Water Chemicals and Test Cartridges (Replenishment Supplies).
4. We can change these Terms at any time if we give you 14 days’ notice of the change, whether via our website or by sending you an email or a communication on the App. You cannot change these terms except with our prior written consent. The then-current Terms of transaction apply, even if the Terms subsequently change.
What you get
5. You become a registered user after you complete the registration process on our App, which requires you to choose a username and password and to agree to follow both the Website Terms and these Terms. You are responsible for keeping your username and password secure and confidential. Please tell us right away if you think or know someone else has used your password or there has been any other security breach, such as a third-party’s use of your credit card number we have on file so we can reset your account password and take any other actions that are reasonable to protect your personal data. Unless due to a mistake by WaterGuru, you are responsible for any use of your account information, such as when someone logs in to your account with your username and password.
6. If you have technical problems with the WaterGuru System or the App, please contact our support team at email@example.com. We will do our best to acknowledge your contact quickly and provide you with information how and when we will address your problem once we understand and verify it.
More about your use of the WaterGuru System
7. You must only use the WaterGuru System for your own lawful, personal residential purposesand according to these Terms.
8. You can use the App to buy a WaterGuru System, purchase Replenishment Supplies and to manage the operation of your WaterGuru System. You acknowledge that you are solely responsible for your actions in installing, configuring, and operating your WaterGuru System.
9. While we have designed the WaterGuru System to manage your pool chemistry automatically, it is up to you to replenish your WaterGuru System with Test Cartridges and Water Chemicals as needed. The WaterGuru System may not be capable of managing your pool chemistry if you do not properly maintain the other aspects of your pool. On suggested intervals, we recommend that you test the pool water to confirm that the water chemistry is balanced and that the WaterGuru System is operating as designed.
10. You acknowledge that we have no responsibility to any person other than you regarding the use and operation of the WaterGuru System, including without limitation users of your pool or anyone who purchases your WaterGuru System from you, and nothing in these terms confers a benefit on any person other than you.
11. You are responsible for any data or cellular service charges that you incur downloading, installing updating or using the App or the Website. You acknowledge that the use of the App and Website requires internet access and that your WaterGuru System requires you to have a Wi-Fi router available and capable of adequately connecting to the System. The User Guide includes the Wi-Fi router requirements.
12. AS A CONDITION OF WATERGURU’S SALE TO YOU OF A WATERGURU SYSTEM AND AS AN ONGOING CONDITION OF ENABLING YOUR USE OF THE APP TO MANAGE THE WATERGURU SYSTEM, YOU AGREE TO PURCHASE GENUINE WATERGURU SYSTEM REPLENISHMENT SUPPLIES FROM WATERGURU, INCLUDING THE WATER CHEMICALS AND TEST CARTRIDGES. IF YOU FAIL TO CURE A BREACH OF THIS SECTION WITHIN THIRTY (30) DAYS FOLLOWING WRITTEN NOTICE FROM WATERGURU, WATERGURU MAY TERMINATE THIS AGREEMENT AND PURSUE ITS LEGAL REMEDIES. YOU AND WATERGURU AGREE THAT WATERGURU’S LEGAL REMEDIES FOR A BREACH OF THIS SECTION WILL BE AT OUR OPTION, TO suspend the operation of the WaterGuru System, OR TO SUSPEND OR TERMINATE YOUR USE OF THE App AND your user account. In each case, we will not refund you the cost of the WaterGuru System or any of your purchases.
13. WaterGuru will charge you for the WaterGuru System or Replenishment Supplies at the prices indicated on the App, and for any applicable taxes and shipping charges.
14. Operation of the App requires you to both download and install it on an approved device listed on the Website. For proper operation of the WaterGuru System, you will need to configure the App and the System as described in the User Guide. You acknowledge that you are responsible for your failure to configure the App and the System as described in the User Guide, as such misconfiguration could prevent your WaterGuru System from operating as designed or could allow a third-party to control your WaterGuru System improperly.
15. You must:
• always give us your correct contact and billing details before submitting each order, particularly if these change;
• follow these Terms, the Website Terms, the App Rerms, the User Guide for the use of the WaterGuru System in the User Guide, and any other agreements you have with us;
• update your Wi-Fi information if it changes; and
• make sure that you comply with all laws, regulations, ordinances and rules that relate to your use of the website, the App, the WaterGuru System and the Water Chemicals, especially the instructions on the Water Chemical packages we provide regarding their safe use, shipment, storage, and disposal.
16. You may not:
• assign or transfer any rights you have under these Terms to any other person without getting our written agreement, including related to the resale of the WaterGuru System;
• use any Replenishment Supplies with the WaterGuru System other than genuine WaterGuru products;
• You may terminate your full use of the App by sending an email to firstname.lastname@example.org and completing our online cancellation form.
• You may stop purchasing Replenishment Supplies at any time. If you want us to delete your payment information from our payment processing system, you can select this option in the App.
18. Either you or we may terminate these Terms if the other one of us breaches a material term of this set of Terms and does not cure that breach within thirty (30) days of receiving a notice that the other party intends to terminate the Terms due to the breach. If we terminate this Agreement, you acknowledge that we may delete your Website data or App data after termination.
WARRANTY AND DISCLAIMER
19. WaterGuru supplies the WaterGuru System and Replenishment Supplies subject to the WaterGuru Limited Warranty, attached to the Terms.
20. OTHER THAN DESCRIBED IN THE WATERGURU LIMITED WARRANTY, OR ANY IMPLIED WARRANTY OR GUARANTEE PROVIDED BY EXISTING LAW, WE DO NOT PROVIDE ANY WARRANTY OR GUARANTEE ABOUT THE WATERGURU WEBSITE, THE WATERGURU SYSTEM, THE APP OR ANY REPLENISHMENT SUPPLIES AS THEY ARE PROVIDED “AS IS.” TO AVOID DOUBT, SUBJECT TO EXISTING LAW, ALL IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED AS MUCH AS PERMITTED BY LAW, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE AND NON-INFRINGEMENT.
21. We will use reasonable efforts to give you access to our App and Website all the time and have them work as intended. We do not make any promises or provide you with a warranty that our App or the website will operate without any faults or interruptions, be secure or private or that they will not have any viruses or malware. You should take reasonable precautions to protect your mobile device, web browser, computer and network from unintended consequences, including the interference by unauthorized third-parties.
22. It is possible that on occasions the App or Website may be unavailable. Sometimes, the unavailability is beyond our control. If for any reason (other than emergency), we intentionally interrupt the services, we will use reasonable efforts to publish in advance details of such activity on the Website or provide you notice through the App. Examples of reasons why we might intentionally interrupt the service include, updating the software or completing network or other operational maintenance.
23. Information on our App and Website will change regularly. We will try to keep our App and Website up-to-date and correct, but again we do not make any promises or guarantees about the accuracy of such information.
24. While we do warrant that the WaterGuru System will substantially work as we describe in the User Guide and the Website, we do not warrant that the WaterGuru System will meet your requirements. It is your sole responsibility to determine that the WaterGuru System meets your residential pool water treatment needs.
25. You agree that WaterGuru will not be legally responsible for:
• any corruption, interception or loss of data or other content which you or anyone else may experience by using our App or Website, or any problems you may have when you view or navigate our Website;
• devices or equipment that we do not own or we have not given or sold to you;
• your failure to follow our instructions in the User Guide how to use the WaterGuru System, these Terms, the App Terms or the Website Terms;
• any actions or non-actions of other people which disrupts access to our App or Website;
• the content of other people’s websites, even if a link to their website is included on our Website (we include the links for your convenience).
26. We reserve the right, with or without notice, to modify or discontinue, temporarily or permanently, the sale of the WaterGuru System or any of its components. You agree that we will not be liable to you or to any third-party for any such modification, suspension or discontinuance.
27. YOU ACKNOWLEDGE THAT THE WATER CHEMICALS MAY BE HAZARDOUS TO YOU OR OTHERS IF SHIPPED, STORED, USED OR DISPOSED OF IN ANY WAY NOT RECOMMENDED BY THE USER GUIDE OR THE INSTRUCTIONS ON THE WATER CHEMICAL PACKAGES. YOU ACCEPT ALL RESPONSIBILITY FOR YOUR NEGLIGENT, WILLFUL OR INTENTIONAL ACTS THAT PROXIMATELY CAUSE BODILY INJURY (OR DEATH) OR PHYSICAL DAMAGE TO YOU OR OTHERS, OR TO YOUR OR OTHERS’ TANGIBLE PERSONAL PROPERTY AND YOU WILL INDEMNIFY WATERGURU FOR ANY CLAIM ARISING FROM SUCH ACTIONS.
Limitation of Liability
28. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE (THIS INCLUDES OUR DIRECTORS, OFFICERS, STAFF AND AGENTS) ARE NOT LIABLE (UNDER ANY LEGAL THEORY) FOR DAMAGES OR OTHER AMOUNTS THAT EXCEED THE SUM OF THE WATERGURU SYSTEM PRODUCTS YOU HAVE PURCHASED FOR THE PREVIOUS SIX (6) MONTHS, AND UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, WASTED EXPENDITURE OR SAVINGS WHICH YOU MIGHT HAVE HAD, DENIAL OF SERVICE OR ACCESS TO OUR WEBSITE, DIRECT OR INDIRECT DAMAGES FROM THE USE OR ABILITY OR INABILITY TO USE THE WATERGURU SYSTEM, THE APP OR OUR WEBSITE. THE PRECDEDING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES WILL NOT APPLY TO OUR LIABILITY FOR BODILY INJURY, DEATH, OR PHYSICAL DAMAGE TO YOUR TANGIBLE PERSONAL PROPERTY ATTRIBUTABLE TO OUR GROSS NEGLIGENCE, WILLFUL OR INTENTIONAL ACTS.
Intellectual Property, Our IP
29. We own or have the right to use the copyright, trademarks, design rights, moral rights, software and other similar rights (intellectual property rights or IPR) included or displayed on our Website, contained in the App and the WaterGuru System. You may not reproduce any of the content on the Website, nor make derivative works of our IPR, without getting our express permission in writing. You do not have any rights to our IPR except those granted under these Terms.
30. Other than specified in these Terms, you are not allowed to, and you cannot let anyone else, copy, alter, distribute, display, license, modify or reproduce, reverse assemble, reverse compile (whether digitally, electronically, by linking, or in hard copy or by any means whatsoever) or use the App or any of our IPR without getting our permission first in writing, unless such an activity is essential to using the Website, the App or the WaterGuru System the way they are designed to be used.
31. If you agree to participate in our Beta Test Program, you agree to not post any review of our Beta Product or its performance on any public forum or website.
Your Data and Information
32. You grant WaterGuru a license to use, copy, transmit, store, and back-up your information and data to enable you to access and use the App and the Website.
• to support your ordering and purchases from us of the WaterGuru System and Replenishment Supplies;
• for your use of the App;
• dealing internally with requests for technical or customer support, complaints, and other customer activities;
• doing WaterGuru market and product research;
• to give you promotional material on our related services and special offers;
• if we are worried that you may be causing or experiencing a security issue;
• if we are required by law, then we might give any information or data to the authorities; and
35. We may collect user information about your use of our App, such as to measure the number of visitors to different parts of the App. We may also gather operational information from your WaterGuru System including your chemical use, your pool water chemistry, and other pool-related data. We would either de-identify your association with such data or aggregate the data with other similar information and the source of any individual piece of data would be lost.
36. We keep all the personal information and your data that we collect confidential to the same extent as our confidential information and in compliance with all applicable laws (this includes your contact details).
Shipment and Delays
37. We will make every effort to ship product you order promptly. We will not be liable for any delay due to depleted inventory; an accident disabling our plant or equipment or that of our suppliers; riots or insurrections; national emergency; labor disputes of every kind, however caused; embargoes; non-delivery by our suppliers; delays of carriers or postal authorities; or governmental restrictions, prohibitions, or requirements. In the event of any such delay, the date of delivery or other performance will be extended for a period equal to the time lost because of the delay. Regardless of the cause, we will not accept any penalty for delays incurred in shipping.
38. You can contact us by writing to email@example.com or any other email address notified by email to you by us, with copies of any legal notices sent to our parent company, WaterGuru, Inc., 150 Post Street, Suite 650, San Francisco CA 94108, Attention: General Counsel. If we need to contact you, we will email to the email address you gave us when you set up our access to the services.
39. Under California Civil Code Section 1789.3, purchasers of the WaterGuru System (and users of the App) from California are entitled to the following specific consumer rights notice: 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., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
No Rights of Third Parties
40. A person who is not a party to these terms, including your friends, guests, helpers or anyone else who either uses any of the WaterGuru System or related products or uses a pool monitored and maintained by the WaterGuru System has no right to benefit under, nor to enforce any of the Terms.
41. These terms and our relationship are governed by law of the State of California without regard to its conflict of law’s provisions. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. These Terms are the entire agreement and understanding between WaterGuru and you and cannot be modified except in a writing signed by both parties. Clerical and typographical errors are subject to correction. Although the App can be used worldwide, the WaterGuru System is designed and tested solely for use in the United States. If you choose to use the WaterGuru System outside of The United States you do so on your initiative, and you are solely responsible for complying with applicable local laws in your county.
42. THESE TERMS CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS
Dispute Resolution by Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and us, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively by final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, both you and we are each waiving the right to a trial by jury and participating in a class action. A neutral arbitrator will determine your rights, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution
We are always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to our customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (Notice).
The Notice to us should be sent to WaterGuru, Inc., at the address below (Notice Address). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and we do not resolve the claim within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
Arbitration will be conducted by a neutral arbitrator following the American Arbitration Association’s (AAA) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the AAA Rules), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for limited reasons.
Unless you and we agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, AAA will make the determination. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely by documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the Arbitration Fees) will be governed by the AAA Rules unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, we will pay all Arbitration Fees. If the value of relief sought is more than $75,000, and you can demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, we will pay your portion of such fees. Also, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision of this Terms of Service to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you agree that you will arbitrate any dispute between us by the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
ATTN: General Counsel
150 Post Street, Suite 650
San Francisco CA 94108
This document was last updated on June 10, 2019