Terms of Service
Terms of Service
Last Updated June 29, 2016
Please read these Terms of Service (the “Agreement”) carefully. Your use of the Site (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and AquaShares, Inc. (“Company” or “we” or “us”) concerning your use of (including any access to) the Company’s site currently located at www.aquashares.com (together with any materials and services available therein, and successor site(s) thereto, the “Site”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the Site, or otherwise made available to you by Company.
By using the Site, you affirm that you are of legal age to enter into this Agreement.
If you are an individual accessing or using the Site on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Site and to any such Organization.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Site following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Site (including access to the Site via any third-party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users.
3. Jurisdictional Issues. The Site is controlled or operated (or both) from the United States, and is not intended to subject Company to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct. In connection with the Site, you must not:
- Post, transmit or otherwise make available through or in connection with the Site any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
- Use the Site for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
- Harvest or collect information about users of the Site.
- Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure or policy of such servers or networks.
- Restrict or inhibit any other person from using the Site.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without Company’s express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Site.
- Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, without Company’s express prior written consent.
- Systematically download and store Site content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Site, without Company’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, Company grants to the operators of public search engines permission to use spiders to copy materials from the public portions of the Site (i.e., those portions which do not require a user name and password) for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Company reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Site.
5. AquaShares. We may provide an electronic platform that allows you to monitor your water consumption based on information provided to us by you or your water utility. You may be able to earn virtual credits, which we call “AquaShares”, based on the reduction in your water consumption, or you may lose AquaShares based on excess water consumption (down to a zero balance). You may be able to sell or donate such AquaShares to other Site users that desire to obtain AquaShares. Alternatively, you may wish to “offset” your water usage by retiring your earned or purchased AquaShares. Your water consumption and the water consumption of other Site users will be based on information provided to Company by the applicable water utility or metering company. The rates and methodologies by which AquaShares are calculated and earned, and the prices at which such AquaShares may be purchased or sold, are subject to change.
The availability of AquaShares through the Site does not imply our affiliation with the purchaser or seller of such AquaShares. Certain weights, measures and similar descriptions are approximate and are for convenience only. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase and sale of any AquaShares.
6. Transactions. If you wish to sell, donate, purchase or offset AquaShares via the Site (a “Transaction”), you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your bank account information, your billing address and your water utility account information. You represent and warrant that you have the right to use any such information that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that your purchase or sale of AquaShares will be conducted only in a lawful manner.
Company reserves the right, including without prior notice and at Company’s sole discretion, to limit the available quantity of or discontinue making available any AquaShares; to adjust the prices for certain AquaShares; to charge or modify the fees assessed by Company for Transactions; to impose conditions on the honoring of any coupon, discount or similar promotion; to place geography-based restrictions on Transactions; to bar any user from making any Transaction; and to refuse to provide any user with AquaShares. AquaShares are not eligible for refund or exchange. You agree to pay all charges incurred by you or on your behalf through the Site, at the prices in effect when such charges are incurred. While it is our practice to confirm exchanges by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell an AquaShare.
You acknowledge and agree that:
- Transactions and any other commercial dealings relating to AquaShares do not constitute the actual exchange of physical commodities. In addition, AquaShares are not securities, derivatives or any other financial asset, and you may not use AquaShares for such purposes.
- The Site and AquaShares do not constitute a cap-and-trade system. We cannot guarantee that Transactions will result in an overall reduction of water usage by other users or your water utility company.
- We do not represent either the seller or the buyer in specific Transactions. We do not control and are not liable to or responsible for the ability of the sellers to complete a sale, or the ability of buyers to complete a purchase.
- Unless expressly authorized in writing by Company, you agree that (a) you may not exchange AquaShares independently of the Site and that the AquaShares may have no value outside of the Site and (b) following an initial Transaction, a purchaser of AquaShares may not resell such AquaShares.
- If you intend to market or promote your use on the Site or any sale, purchase or donation of AquaShares, you must ascertain and obey all applicable laws regarding such activities and Company will have no responsibility or liability in connection with such activities.
7. Taxes. You may be subject to federal and state income tax on revenue generated by Transactions that you enter into using the Site (including your receipt and sale of AquaShares). You are responsible for determining and complying with applicable tax reporting and payment obligations with respect to your Transactions, and you should consult with your tax advisor to determine the tax consequences to you of engaging in a Transaction. You hereby acknowledge that you are aware that if you engage in Transactions using the Site (including your receipt and sale of AquaShares) you may be required to pay income tax on any revenue generated from such Transaction. You further acknowledge that you are aware that Company may be required by law to provide certain information relating to Transactions to the Internal Revenue Service and other tax authorities, which information may include user taxpayer identification and Transaction information. By entering into a Transaction, you hereby give your permission to Company to provide any and all information necessary to the appropriate tax authorities in order comply with federal and state tax laws; provided that Company will keep all taxpayer information confidential to the full extent of the law. We do not make any representations regarding whether AquaShares are tax-deductible and disclaim any and all liability connected to the tax status of AquaShares.
8. Registration; User Names and Passwords. You may need to register to use all or part of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Company, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account.
9. Profiles and Forums. Site visitors may make available certain materials (each, a “Submission”) through or in connection with the Site, including on profile pages or on the Site’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Company has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Site, you do so at your own risk.
10. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Site or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Site, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
11. Monitoring. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Site, or analyze your access to or use of the Site. We may disclose information regarding your access to and use of the Site, and the circumstances surrounding such access and use, to improve the Site and for any other purpose.
12. Your Limited Rights. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use.
13. Company’s Proprietary Rights. We and our suppliers own the Site, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include AQUASHARES, AQUAMARK, AQUALITY RATING, AQUAVAULT, AQUAJUST, ECOSHARES, AQUANET, ONLINE WATER SAVINGS MARKET and any associated logos. All trade names, trademarks, service marks and logos on the Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
14. Third Party Materials; Links. Certain Site functionality may make available access to information, products, services and other materials made available by third parties, including Submissions and water consumption data and other information provided by a water utility or metering company (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
16. Disclaimer of Warranties. The Site and any AquaShares and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory. Company disclaims all warranties with respect to the Site and any AquaShares and Third Party Materials to the fullest extent permissible under applicable law, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made on behalf of both Company and its affiliates and their respective members, managers, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at email@example.com with a description of such alteration and its location on the Site.
17. Limitation of Liability. Company will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses. Without limiting the foregoing, Company will not be liable for damages of any kind resulting from your use of or inability to use the Site or from any AquaShares or Third Party Materials, including from any Virus that may be transmitted in connection therewith. Your sole and exclusive remedy for dissatisfaction with the Site or any AquaShares or Third Party Materials is to stop using the Site. The maximum aggregate liability of Company for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of the total amount, if any, paid by you to Company to use the Site or $10.00. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made on behalf of both Company and the Affiliated Entities, and their respective successors and assigns.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
18. Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Site (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
19. Termination. This Agreement is effective until terminated. Company may terminate or suspend your use of the Site at any time and without prior notice, for any or no reason, including if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated AquaShares and materials, without any obligation to provide any further access to such AquaShares and materials. Sections 2–11 and 13–25 shall survive any expiration or termination of this Agreement.
20. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Company and you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
21. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.
22. Information or Complaints. If you have a question or complaint regarding the Site, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to AquaShares, Inc., 50 Sunset Way, Muir Beach, California 94965. 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.
23. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send to Company a written notice by mail, e-mail or fax, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to James Workman as follows: by mail to James Workman, AquaShares, Inc., 50 Sunset Way, Muir Beach, California 94965; by e-mail to email@example.com.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
24. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
25. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall 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. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Site © 2016 AquaShares, Inc. unless otherwise noted. All rights reserved.