Pro Automation (Pty) Ltd
TERMS AND CONDITIONS OF USE
Date of Last Revision: 10 June 2019
THIS TERMS AND CONDITIONS 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 THE 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.
Pro Automation (Pty) Ltd (“Pro Automation”, “PoolSense”, “we,” “us,” “our”) provides its products (“Product(s)”) and services (“Services”) as described below to you through its website located at www.proautomation.co (the “Website” or “Site”) and/or through the mobile applications (“App”) subject to the following Terms and Conditions as amended from time to time.
We reserve the right, at our sole discretion, to change or modify portions of these Terms and Conditions at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Site or App user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the services or changes made for legal reasons will be effective immediately. Your continued use of the services after the date any such changes become effective constitutes your acceptance of the new Terms and Conditions.
Access and Use of the Product
Product Description: The Product is designed to provide an automated water quality monitoring by measuring and transmitting certain water quality parameters.
Product Lifespan: The Product is warranted to last a minimum of 24 months from the date of purchase, The various probes and batteries have a limited life span. This is considered the lifespan of the product. PoolSense may offer a trade-in on the old unit provided the owner, at their cost, ships or delivers the unit to an address designated by PoolSense.
The warranty shall be cancelled should the user;
- Allow the chemistry of the Pool water to remain more than 10% out of the limits as set on the PoolSense App for more than 7 days continuously as this can damage the probe.
- Cause the unit to be physically damaged in any way whatsoever.
Access and Use of the Service
Services Description: The Service is designed to provide an automated pool monitoring device and supporting software solution.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Pro Automation of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Pro Automation will not be liable for any loss or damage whatsoever arising from your failure to comply with this Section of this document.
Modifications to Service: Pro Automation reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Pro Automation will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Pro Automation may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allocated on Pro Automation’s computer servers on your behalf. You agree that Pro Automation has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Pro Automation reserves the right to terminate accounts that are inactive for an extended period of time, in its sole discretion. You further acknowledge that Pro Automation reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via an App installed on a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s/network provider’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier/network provider, and not all Mobile Services may work with all carriers/network provider’s or devices. By using the Mobile Services, you agree that we may communicate with you regarding Pro Automation and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Pro Automation account information to ensure that your messages are not sent to the person that acquires your old number.
Subscription Terms and Fees
Pro Automation Device Subscriptions: PoolSense Device and Deviceing Subscriptions include a PoolSense Device (“Device”) and access to the PoolSense Mobile App (“App”). Your subscription covers the cost of the data service but excludes the cost of replacement of the device or parts of the device for normal wear and tear, as determined in our sole discretion and is payable in accordance with the Fees section found on our website or available on request. For more information on how to cancel your Device and Deviceing subscription, please see the Termination section, below.
If you purchased a PoolSense device your purchase entitles you to 1 year of access to the PoolSense Mobile App (“App”) and the data required. At the end of the initial year, you can purchase a subscription to continue using the PoolSense Mobile App or by any other means requested or convenient to Pro Automation
Fees: Upon selecting a Subscription plan via the Services, you will be required to select a payment plan and provide Pro Automation information regarding your credit card or other payment instrument suitable to Pro Automation. You represent and warrant to PoolSense that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Pro Automation the amount that is specified in the Subscription plan in accordance with the terms of such plan and this Terms and Conditions. You hereby authorize Pro Automation to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account (in accordance with the terms of Termination herein), and you further agree to pay any charges so incurred. If you dispute any charges you must let Pro Automation know within sixty (60) days after the date that Pro Automation charges you. We reserve the right to change Pro Automation’s prices. If Pro Automation does change prices, Pro Automation will provide notice of the change on the Site or in email to you, at Pro Automation’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the provision of Devices and/or Services other than any in country taxes based on Pro Automation’s net income.
Resale; Lease; Title Transfer; and Returns: The Services and any related products, including the Device, Subscription Chemicals, additional Chemicals and additional Services (the “Products”), are intended for end users only, and are not authorized for resale.
If you purchased a PoolSense Device at a retail store, title to the PoolSense Device purchased passes to you at the time of purchase. Your retail purchase covers the cost of the Device (Including replacement of the Device by Pro Automation. for normal wear and tear, as determined in our sole discretion). Please contact firstname.lastname@example.org for any warranty replacements. Pro Automation retail purchase returns subject to the return policy of the store where purchased.
Product Restrictions: Although our Site is accessible worldwide, our Products are designed and tested solely for use in countries and territories where the Sigfox IoT network is available. To be more specific where the specific zone that supports the communications available on the PoolSense Device is legally and technically licensed to work. If you choose to use the Products outside of countries as shown on our Site you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Pro Automation. Pro Automation reserves the right to investigate and take appropriate legal action against anyone who, in Pro Automation’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other
proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of PoolSense , is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Pro Automation or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorised;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, may be subject to export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of any countries specific export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use, unless covered by an agreement signed between Pro Automation and you.
Apple-Enabled Software Applications Pro Automation offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms and Conditions, the following terms and conditions apply:
- Pro Automation and you acknowledge that these Terms and Conditions are concluded between Pro Automation and you only, and not with Apple, and that as between Pro Automation and Apple, Pro Automation, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms and Conditions.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms and Conditions.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Pro Automation’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Pro Automation and you acknowledge that Pro Automation, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Pro Automation and Apple, Pro Automation , not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Pro Automation as follows: email@example.com the physical address of the company can be found on the Site. Pro Automation and you acknowledge and agree that Apple, and Apple’s subsidiaries are third party beneficiaries of these Terms and Conditions with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorised by Pro Automation , you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Pro Automation from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorised herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Pro Automation, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Pro Automation.
The PoolSense name and logos are trademarks and service marks of Pro Automation (collectively the “Pro Automation Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Pro Automation. Nothing in this Terms and Conditions or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Pro Automation Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Pro Automation Trademarks will inure to our exclusive benefit. Third Party Material: Under no circumstances will Pro Automation be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Pro Automation does not pre-screen content, but that Pro Automation and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Pro Automation and its designees will have the right to remove any content that violates these Terms and Conditions or is deemed by Pro Automation, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Pro Automation and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Pro Automation are non-confidential and Pro Automation will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Pro Automation may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms and Conditions; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Pro Automation, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Pro Automation has no control over such sites and resources and Pro Automation is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Pro Automation will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Pro Automation is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, Pro Automation is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Pro Automation is not liable for any damage or loss caused or alleged to be caused by, or in connection with use of, or reliance on any such Social Networking Services. Pro Automation enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold Pro Automation and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms and Conditions or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”
AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II)
THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS
THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR
(IV) THE QUALITY OR QUANTITY OF ANY PRODUCTS (INCLUDING, WITHOUT LIMITATION ANY
CHEMICALS PURCHASED HEREUNDER AND YOUR USE THEREOF), SERVICES (INCLUDING,
WITHOUT LIMITATION, ANY SHIPPING OR HANDLING OF PRODUCTS), INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL BE WITHOUT ERROR OR MEET YOUR EXPECTATIONS.
OUR PRODUCTS MAY INCLUDE PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION. AS A CONDITION TO RECEIVING SERVICES, YOU AGREE TO STRICTLY COMPLY WITH ALL PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF PRODUCTS, AND ANY UPDATES THAT WE PROVIDE TO YOU VIA THE SERVICES. IN ADDITION, YOU AGREE TO ONLY USE THE PRODUCTS IN A MANNER THAT COMPLIES WITH ALL APPLICABLE LAWS AND REGULATION.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY CHEMICALS OR PRODUCT PURCHASED THROUGH THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY
GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED (INCLUDING, WITHOUT
LIMITATION ANY CHEMICALS OR OTHER PRODUCT PURCHASED THROUGH THE SERVICES) OR
MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV)
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution by Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
THIS DISPUTE RESOLUTION BY BINDING ARBITRATION SECTION IS REFERRED TO IN THIS TERMS AND CONDITIONS AS THE “ARBITRATION AGREEMENT.” YOU AGREE THAT ANY AND ALL DISPUTES OR CLAIMS THAT HAVE ARISEN OR MAY ARISE BETWEEN YOU AND COMPANY, WHETHER ARISING OUT OF OR RELATING TO THIS TERMS AND CONDITIONS (INCLUDING ANY ALLEGED BREACH THEREOF), THE SERVICES, ANY ADVERTISING, ANY ASPECT OF THE RELATIONSHIP OR TRANSACTIONS BETWEEN US, SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN A COURT OF LAW, 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 ANY GOVERNMENT AGENCIES, AND SUCH AGENCIES CAN, IF THE LAW ALLOWS, SEEK RELIEF AGAINST US ON YOUR BEHALF. YOU AGREE THAT, BY ENTERING INTO THIS TERMS AND CONDITIONS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. APPLICABLE LAW SHALL BE THAT AS EXISTING AT SUCH TIME IN THE REPUBLIC OF SOUTH AFRICA AND ANY ACTION INCLUDING ARBITRATION SHALL TAKE PLACE IN THE REPUBLIC OF SOUTH AFRICA AND SHALL BE SUBJECT TO SUCH LAWS OF THAT COUNTRY.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE COMPANY 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 COMPANY 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
COMPANY IS ALWAYS INTERESTED IN RESOLVING DISPUTES AMICABLY AND EFFICIENTLY, AND MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER’S SATISFACTION BY EMAILING CUSTOMER SUPPORT AT SUPPORT@PROAUTOMATION.CO. 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 COMPANY SHOULD BE SENT TO PROAUTOMATION (Pty) LTD TO THE PHYSICAL ADDRESS THAT CAN BE FOUND ON THE WEBSITE, OR ALTERNATIVELY THAT MAY BE PROVIDED FOLLOWING ANY ENQUIRY SENT TO THE ABOVEMENTIONED EMAIL ADDRESS (“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 COMPANY AND YOU DO NOT RESOLVE THE CLAIM WITHIN SIXTY (60) CALENDAR DAYS AFTER THE NOTICE IS RECEIVED, YOU OR COMPANY MAY COMMENCE AN ARBITRATION PROCEEDING. DURING THE ARBITRATION, THE AMOUNT OF ANY SETTLEMENT OFFER MADE BY COMPANY OR YOU SHALL NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR DETERMINES THE AMOUNT, IF ANY, TO WHICH YOU OR COMPANY IS ENTITLED.
- Arbitration Procedures
ALL DISPUTES, DIFFERENCES OR CLAIMS SHALL BE DETERMINED BY ARBITRATION UNDER THE ARBITRATION ACTS AS AMENDED 1965 OR ANY STATUTORY MODIFICATION OR RE-ENACTMENT THEREOF FOR THE TIME BEING IN FORCE. THE AGREEMENT SHALL IN ALL RESPECTS BE CONSTRUED AND SHALL OPERATE AS A SOUTH AFRICAN CONTRACT AND IN CONFORMITY WITH THE LAWS OF THE REPUBLIC OF SOUTH AFRICA.
e. Costs of Arbitration
PAYMENT OF ALL FILING, ADMINISTRATION, AND ARBITRATOR FEES (COLLECTIVELY, THE “ARBITRATION FEES”) WILL BE GOVERNED BY THE ABOVEMENTIONED ACTS, UNLESS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT.
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 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 AND CONDITIONS WILL CONTINUE TO APPLY.
h. Future Changes to Arbitration Agreement
NOTWITHSTANDING ANY PROVISION IN THIS TERMS AND CONDITIONS TO THE CONTRARY, THE COMPANY AGREES THAT IF IT MAKES 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 COMPANY WRITTEN NOTICE WITHIN THIRTY (30) CALENDAR DAYS OF THE CHANGE TO THE NOTICE ADDRESS PROVIDED ABOVE. BY REJECTING ANY FUTURE CHANGE, YOU ARE AGREEING THAT YOU WILL ARBITRATE ANY DISPUTE BETWEEN US IN ACCORDANCE WITH THE LANGUAGE OF THIS ARBITRATION AGREEMENT AS OF THE DATE YOU FIRST ACCEPTED THESE TERMS AND CONDITIONS (OR ACCEPTED ANY SUBSEQUENT CHANGES TO THESE TERMS AND CONDITIONS).
You may cancel your Pro Automation Chemical Subscription at any time by sending an email to firstname.lastname@example.org notifying us of your intent to cancel at least thirty (30) days prior to the end of your then-current Subscription term, provided however, any Subscription plans cancelled within the first three (3) months of the plan will be subject to an early termination fee. Other Subscription terms and conditions may apply, as indicated on the Services. If you have placed a Pre-Order with us, you may cancel your Pre-Order Subscription at any time prior to shipment by contacting email@example.com.
Cancellations and refunds not applicable for PoolSense Device Subscriptions.
You agree that Pro Automation, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Pro Automation believes that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Pro Automation may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms and Conditions may be effected without prior notice, and acknowledge and agree that Pro Automation may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Pro Automation will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Pro Automation will have no liability or responsibility with respect thereto. Pro Automation reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms and Conditions constitute the entire agreement between you and Pro Automation and govern your use of the Service, superseding any prior agreements between you and Pro Automation with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms and Conditions will be governed by the laws of the Republic of South Africa without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Pro Automation agree to submit to the personal and exclusive jurisdiction of the state and magisterial courts located within Johannesburg, Gauteng, South Africa. The failure of Pro Automation to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms and Conditions without the prior written consent of Pro Automation, but Pro Automation may assign or transfer this Terms and Conditions, in whole or in part, without restriction. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms and Conditions or other matters by displaying notices or links to notices generally on the Service.
Contact with Pro Automation
Please contact us at firstname.lastname@example.org to report any violations of these Terms and Conditions or to pose any questions regarding this Terms and Conditions or the Service.