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Welcome to everythingbutwater.com ("Website"). We are part of Orlando Bathing Suit, LLC ("OBS").
THIS WEBSITE, AND ALL CONTENT AVAILABLE ON THIS WEBSITE, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, YOU ACKNOWLEDGE AND AGREE THAT YOU USE THIS WEBSITE AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE, AND THAT OBS AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS ("AFFILIATES") SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THIS WEBSITE.
OBS AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE WEBSITE, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE WEBSITE. YOU AGREE TO HOLD HARMLESS OBS AND ITS AFFILIATES AND THAT THEY WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE WEBSITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE WEBSITE BY ANY THIRD PARTY; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE WEBSITE.
IN NO EVENT WILL OBS OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE WEBSITE, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY THAT OBS SHALL HAVE TO YOU, REGARDLESS OF LEGAL THEORY, SHALL BE THE NET AMOUNT YOU HAVE ACTUALLY PAID OBS OVER THE PRIOR SIX (6) MONTHS PRIOR TO YOUR CLAIM, OR $100, WHICHEVER IS LESS. ANY AND ALL CLAIMS YOU MAY HAVE AGAINST OBS MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE CLAIM, OTHERWISE SHALL FOREVER BE BARRED.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any warranty or limit our liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
We reserve the right to update or modify these Terms and Conditions at any time without prior notice. Any changes will go into effect on the Last Updated Date shown in the revised Terms and Conditions. By continuing to use the Website, you are agreeing to the revised Terms and Conditions. For this reason, we encourage you to review these Terms and Conditions whenever you purchase products from us or use our Website.
You must be at least eighteen (18) years old to use the Website. If you are under the age of eighteen (18), your parent or legal guardian must agree to these Terms and Conditions on your behalf, and you may only access and use the Website with permission from your parent or legal guardian.
Our shipping and processing charges are intended to compensate us for the estimated cost of processing your order, handling and packing the products you purchase and delivering them to you. We encourage you to click on this link to review detailed information about our shipping and processing fees . By paying for your order, you agree that all shipping and processing fees are reasonable, authorized, and non-refundable.
If you pay using electronic means, you agree to verify within one (1) business days that the amounts charged to your account are accurate. If you find that there are any inaccurate amounts charged, you agree to notify us immediately by contacting customer service. You acknowledge and agree that if you delay in notifying us, it may negatively affect our ability to resolve the matter, and that you accept all risk associated with the same.
You are responsible for maintaining the security of your Website account. You agree and understand that you are solely responsible for your account security settings, protection of confidential information (e.g., your password), and all consequences that stem from activities occurring with your account. You also agree that we are not responsible for any unauthorized use of your account or unauthorized payment methods. You agree to not share your login information with anyone. We will never request your password. If you suspect that your account or login information has been compromised, you should immediately change your password and contact us.
You further agree to promptly notify us of any security breach relating to your account.
We encourage all Website users to proactively take steps to enhance their personal security measures. These measures may include using "strong" passwords that consist of lower case and capitalized letters as well as numbers; regularly changing passwords, and preventing the disclosure of passwords to any third parties.
You agree that all information you provide through the Site or otherwise to us is true, current, complete and accurate. You also agree that you will update your information as needed to keep it true, current, complete and accurate. You hereby agree to promptly notify us without delay, but in no event more than five (5) business days, of a change in any information you provided us.
Failure to provide such updated information will constitute a material breach of the terms of these Terms and Conditions and may lead to the suspension or termination of your account.
We welcome your comments about our Website. However, any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively "Comments") sent to our Website shall be and remain the exclusive property of OBS. Your submission of any such Comments shall constitute an assignment to OBS of all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. OBS will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork.
You are responsible for your use of the Website and for any use of the Website made using your account. Our goal is to create a positive, useful and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Website, you may not:
If you violate these Terms, OBS may take remedial action against you, including but not limited to suspending your account, terminating your ability to transact business with OBS and/or visit the Website, and pursuing all other remedies available under the law.
You agree that we hold all right, title and interest to all services, its websites and information and technology used to provide the Website and its services. You acknowledge that no title or interest in such intellectual property rights is being, or has been, transferred to you. You further agree to make no claim of interest in any such intellectual property or use any of our intellectual property rights without the express written permission from us.
All content including but not limited to text, graphics, downloads and software included on this site is the property of OBS or its licensors and is protected by United States and international copyright laws.
You also grant OBS a non-exclusive, royalty free, perpetual license to use, reference, post, identify, or otherwise utilize your intellectual property rights that you submit through the Website or otherwise provide to us. Such information will be used solely by us in conjunction with marketing the Website and its services.
Our Website may contain hyperlinks to outside services and resources. OBS does not control the availability or content of these services. When you click on any such links, you do so at your own risk. You hereby agree to hold OBS harmless and that your sole recourse related to these third-party services is solely with such third-party services.
The prices displayed on our Website may differ from prices that are available in stores or in catalogs, and our pricing may differ from store to store. If you are visiting one of our non-U.S. sites, prices will generally be displayed in local currency. The prices displayed in our printed catalogs are quoted in U.S. Dollars and are valid and effective only in the U.S.
Occasionally we will offer special promotions to our customers that we refer to as "special offer(s)". This can include a gift with purchase, free shipping or other promotional activity associated with a product purchase. These offers may be for a limited time only and are provided at our sole discretion. All special offers may be discontinued by OBS at any time and without notice. All special offers are subject to applicable law and void where prohibited.
From time to time, there may be information on our Website or in our catalog that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing and availability. OBS reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time (including after you have submitted your order). In rare situations, product pricing may be incorrect and we reserve the right to modify or cancel orders that were placed with incorrect pricing. Should there be incorrect pricing on a product you have ordered, we may attempt to contact you and provide you with the option of affirming the order with the modified/corrected pricing. If you do not wish to continue your purchase after pricing or other information has been corrected, please contact us right away, and we will work with you to cancel or return your order.
To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless OBS and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages and expenses (including, without limitation, reasonable attorney's fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms and Conditions by you or anyone using your account or liability that you cause us related to your use of the Website, its services, or goods purchased from the Website. We may elect legal counsel of our choosing. If we assume the defense of such a matter, which you agree is our right, you will reasonably and promptly cooperate with us in such defense.
OBS seeks to operate its business in a collaborative and hospitable way to its customers. Nearly all disputes can and should be resolved informally (e.g. you calling OBS's customer service and discussing your concern). Where we are unable to resolve the matter informally, and to further the goal of working together to resolve any concerns or problems, prior to you bringing any formal legal claims against OBS (e.g. arbitration, lawsuit, etc.), you agree to mediate all disputes with OBS. Except for injunctive relief, OBS likewise agrees to mediate all disputes with you before pursuing any formal legal claims against you. You and OBS agree to use an impartial third-party professional mediator. If we are unable to agree on a mediator, then either party shall be able to institute a mediation service provided by the National Arbitration Forum (www.adrforum.com). OBS shall bear the cost for the first hour of mediation, and thereafter, the parties shall split the costs equally. Prior to any mediation, the party pursuing any claims must provide a detailed summary of its claims to the other party at least twenty (20) days to when the mediation is scheduled to take place.
Nothing in this paragraph is intended to violate any applicable statutory rights you may have to make complaints to governmental organizations or law enforcement, or for the ability of a party to institute a counterclaim in a formal legal proceeding. This notice and mediation provision, along with the arbitration provision below, are material provisions of this agreement, and if breached, will entitle the other party to its reasonable attorneys' fees in enforcing these provisions.
You and OBS agree that if we are unable to resolve disputes between us, including after the mandatory mediation process stated above, that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and OBS hereby waive any right to a jury trial of any Claim. All controversies, claims, counterclaims or other unresolved disputes arising between you and OBS relating to these Terms and Conditions or the Website (each a "Claim") shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association ("AAA Rules"). The arbitration will be heard and determined by a single arbitrator at a location mutually agreeable between the parties, or if no agreement can be had, then Kansas City, MO. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, OBS will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or OBS from seeking action by federal, state or local government agencies. In addition, you and OBS retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms and Conditions, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms and Conditions.
Neither you nor OBS may act as a class representative or private attorney general or participate as a member of a class of claimants with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or OBS's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect and the offending provision amended with the intent that it is the goal of the parties to resolve any disputes in as low-cost and amicably way as possible. No waiver of any provision of this Section of the Terms and Conditions will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms and Conditions. This Section of the Terms and Conditions will survive the termination of your relationship with OBS.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR OBS WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
To aid in the prompt and speedy resolution of all disputes, all claims must be pursued (via arbitration and/or litigation) within one (1) year of when the claim originally arose. Should a mediation be pending and/or incomplete, the parties shall have an additional one (1) month to pursue their claims. Should any claim be brought against a party, the other party may bring any counterclaims within thirty (30) days without regard to any of the above-referenced timeframes.
We respect the intellectual property rights of others. If you believe there is content on the Website or catalogs that belongs to you or someone you are responsible for by law and is being used on the Website or catalogs without proper permissions, you may send notice and details of the alleged infringement to firstname.lastname@example.org. We will take reasonable steps to investigate the situation and take appropriate action. To the extent applicable, will seek to follow process provided under the Digital Millennium Copyright Act of 1998 ("DMCA"). If you receive communication from us that any of your content has been removed or is subject to removal, you may provide a counter-notice as allowed under the DMCA
If the arbitration provision does not apply or is invalid, any other action relating to the use of the Website or catalogs or to any transaction with OBS must be brought in the state or federal courts located in Orange County, Florida. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any conflict of laws rules or provisions.
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
If any provision of these Terms and Conditions is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms and Conditions will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms and Conditions, including in connection with a merger, acquisition, sale of assets or equity or by operation of law.