PRODUCT AGREEMENT

 

Most Recent Update: November 9, 2017

 

Welcome to the online store (the "Store") provided by CEC International, Inc., a California corporation (“CEC” or “we” or “us”).  For purposes of this Product Agreement (the “Agreement”), “you” or “Customer” refers to the person who is either (1) purchasing a Product (defined below) from the Store, or (2) activating a Product that was purchased from a retailer other than CEC.

 

By purchasing a Product from the Store, or by activating a Product that you purchased from a retailer other than CEC, you are agreeing to be bound by terms of this agreement (the “Agreement”).  You are also agreeing to be bound CEC’s Terms of Serviceand Privacy Policy, and with the terms of any Limited Warranty included in-box with any Product, all of which are incorporated by reference.  

 

THIS IS A LEGAL AGREEMENT. BY PURCHASING A PRODUCT FROM THE STORE, OR BY ACTIVATING A PRODUCT THAT YOU PURCHASED FROM SOMEONE OTHER THAN CEC, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOU SHOULD NOT PURCHASE ANY PRODUCT FROM THE STORE.  IF YOU PURCHASED YOUR PRODUCT NEW FROM A RETAILER OTHER THAN CEC, YOU MAY REJECT THIS AGREEMENT BY RETURNING THE UNUSED PRODUCT, ALONG WITH PROOF OF PURCHASE, TO CEC FOR A FULL REFUND BY FOLLOWING THESE RETURN INSTRUCTIONS.  BY ACTIVATING YOUR PRODUCT, YOU ARE ACCEPTING THIS AGREEMENT EVEN IF YOU PURCHASED IT FROM SOMEONE OTHER THAN CEC.  EXCEPT AS SPECIFICALLY STATED BELOW, THE TERMS OF THIS AGREEMENT SHALL APPLY TO YOU EVEN IF YOU PURCHASED YOUR PRODUCT FROM A RETAILER OTHER THAN CEC.

 

ALSO, AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC UPDATES OF THE SOFTWARE (DEFINED BELOW). IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SOFTWARE.

 

THE PRODUCT IS NOT A LIFESAVING DEVICE. THIS AGREEMENT INCLUDES IMPORTANT DISCLOSURES ABOUT THE LIMITATIONS OF THE PRODUCT AND RELATED SOFTWARE, ESPECIALLY IN CONNECTION WITH POOL SAFETY AND DROWNING PREVENTION. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING AND ACCEPTING THEM BY USING THE PRODUCT.

 

YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE THIS PRODUCT AND TO ENTER INTO THIS AGREEMENT.

 

We reserve the right to change this Agreement at any time, so please review the Agreement each time prior to making a purchase from the Store or from another retailer, other than CEC, to confirm that the updated Agreement is acceptable to you.  Any revisions to the Agreement will apply only to future purchases of Products.  We also reserve the right to change our Privacy Policyand Terms of Useat any time as described in those documents.   

 

The Store is for retail sales to private consumers only. Please contact us hereif you wish to purchase wholesale supplies.

 

Please read this Agreement carefully. As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products or services that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights you should refer to the laws applicable in your country or jurisdiction. Nothing in this Agreement will affect those other legal rights.

 

  1. Definitions. For purposes of this Agreement:

 

(a)        “Product” means the cFloat System (“cFloat”) and any other tangible CEC product marketed by CEC, including any related Software.  

 

(b)       “Product Information” includes pool-related data gathered by your cFloat Product (such as water temperature, water chemistry, and movement detection data from your swimming pool) and any other data gathered or transmitted via your Products or Software.

 

(c)        “Software” means (A) the software pre-installed by CEC on each Product, and (B) any downloadable software applications provided by CEC for use in connection with a Product.

 

  1. Purchasing from CEC.  If you are purchasing a Product directly from CEC, you hereby agree to the purchase terms set forth in this Section.  This Section does not apply to a purchase from a retailer other than CEC.  

 

(a)        Customer hereby agrees to purchase the Products referenced in Customer’s online shopping cart (the “Shopping Cart”).  

 

(b)       Price, payment, and shipping terms shall be as described in the Shopping Cart.  CEC charges sales tax as required by law. Title to any Product that Customer purchases from CEC will pass to Customer upon delivery to the carrier for shipment.  

 

(c)        By providing a credit card or other payment method accepted by CEC, Customer (1) represents and warrants that Customer is authorized to use the designated payment method, and (2) authorizes CEC (or CEC’s third-party payment processor) to charge Customer for the total amount of Customer’s order (including any applicable taxes and other charges). If the payment method Customer provides cannot be verified, is invalid or is otherwise not acceptable, Customer’s order may be suspended or cancelled. Customer must resolve any payment problem CEC encounters in order to proceed with Customer’s order. Customer must pay any applicable charges or penalties related to any failed payment method.

 

3.         Compliance with Laws, Other Customer Obligations. 

 

(a)        Customer agrees to comply with any laws or regulations that apply to Customer’s home or swimming pool, including safety requirements.

 

(b)       Customer agrees not to: (1) use any Product or Software for any malicious or unlawful purpose or in any unlawful manner; (2) disassemble, decompile or reverse engineer a Product or Software, attempt to do so, or authorize anyone else to do so; or (3) block, disable or otherwise fail to install any Software updates provided by CEC. Customer acknowledges that engaging in any of these activities will void the limited warranties set forth in this Agreement.  

 

4.         Intellectual Property Rights.

        

(a)        Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant Customer any rights or interest in or to any CEC Intellectual Property. For purposes of this Agreement, the term “Intellectual Property” means any current or future worldwide rights under the laws that apply to patent, copyright, trademark, or trade secret; any moral rights; or any similar rights.  As between CEC and Customer, “CEC Intellectual Property” includes the Intellectual Property relating to each Product and the Software.

 

(b)       Use of Customer Suggestions. CEC may utilize any suggestions or feedback received from Customer without any obligation to Customer, and any modifications to CEC’s Products, Software, business practices and services shall be the sole and exclusive property of CEC.

 

(c)        Limited License.  CEC grants Customer a limited, nonexclusive license to use the Software for use in connection with each Product operated by Customer.  This license does not constitute a sale of the Software or any copy thereof, and as between CEC and Customer, CEC retains all right, title, and interest in the Software.  Customer acknowledges and agrees that the Software may be updated automatically and, for Software designed for use on a mobile device, a compatible mobile device is required for use.  

 

(d)       Open Source Software.  Certain items of software included with the Software may be subject to “open source” or “free software” licenses (“Open Source Software”). Some Open Source Software may be owned by third parties. Any Open Source Software is not subject to the terms and conditions of this Section. Instead, any item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Section limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for Open Source Software. If required by any license for particular Open Source Software, CEC will make such Open Source Software, and CEC’s modifications to that Open Source Software, available by written request to CEC at the following address salesterms@cfloat.co.

 

5.         Safety Warnings, Product Limitations.  

 

WHILE THE CFLOAT PRODUCT CAN ENHANCE THE SAFETY OF YOUR SWIMMING POOL WHEN USED PROPERLY, YOU CANNOT RELY UPON YOUR CFLOAT PRODUCT TO PREVENT DROWNING.  THE CFLOAT PRODUCT IS NOT A LIFESAVING DEVICE.  FURTHER, THE CFLOAT PRODUCT AND RELATED SOFTWARE ARE NOT CERTIFIED FOR EMERGENCY RESPONSE. YOU UNDERSTAND AND AGREE THAT THE CFLOAT PRODUCT AND RELATED SOFTWARE ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM—CEC DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. FURTHERMORE, CEC’S SUPPORT TEAM CANNOT BE CONSIDERED A LIFESAVING SOLUTION FOR PEOPLE AT RISK IN THE HOME, AND THEY ARE NO SUBSTITUTE FOR EMERGENCY SERVICES. ALL LIFE THREATENING AND EMERGENCY EVENTS SHOULD BE DIRECTED TO THE APPROPRIATE RESPONSE SERVICES.

 

YOU SHOULD USE MULTIPLE LAYERS OF PROTECTION TO PREVENT DROWNING, INCLUDING TEACHING YOUR CHILDREN TO SWIM, ALWAYS PROVIDING ADULT SUPERVISION AT YOUR POOL, INSTALLING FENCING AROUND YOUR POOL WITH A LOCKED GATE, LEARNING CPR, AND INSTALLING ALARMS ON DOORS LEADING TO YOUR POOL AREA.  Please see the U.S. Consumer Product Safety Commission’s Drowning Prevention Toolkitfor more information about pool safety.

 

YOU ACKNOWLEDGE THAT FAILURE TO SECURE YOUR SWIMMING POOL AND PROVIDE APPROPRIATE SUPERVISION WHENEVER IT IS USED MAY RESULT IN SEVERE PERSONAL INJURY OR DEATH, INCLUDING DEATH BY DROWNING.

 

YOU ACKNOWLEDGE THAT FAILURE TO MAINTAIN PROPER POOL CHEMISTRY (INCLUDING PROPER CHLORINE AND PH LEVELS) CAN RESULT IN INJURY AND ILLNESS (INCLUDING RASHES AND INFECTIONS) OR EVEN DEATH.   YOU ALSO ACKNOWLEDGE THAT FAILURE TO PROPERLY MAINTAIN THE WATER LEVEL IN YOUR POOL CAN LEAD TO SERIOUS INJURY, INCLUDING BROKEN BONES, PARALYSIS OR EVEN DEATH.  THEREFORE, YOU AGREE TO REGULARLY VERIFY YOUR POOL CHEMISTRY AND WATER LEVEL AND TO MAKE ANY NEEDED ADJUSTMENTS.

 

WHILE THE CFLOAT PRODUCT CAN PROVIDE USEFUL, TIMELY PRODUCT INFORMATION ABOUT YOUR POOL CONDITIONS, WE CANNOT GUARANTEE THAT IT WILL ALWAYS BE CORRECT OR UP TO DATE.  ALL PRODUCT INFORMATION IS PROVIDED “AS IS” AND “AS AVAILABLE”.  

 

6.         30-Day Return.  If you are the original purchaser of the Product and you are not satisfied with this Product for any reason, you may return it in its original condition within thirty (30) days of the original purchase and receive a full refund (the “30-day Return Period”).

 

7.         Limited Warranty.  

 

(a)        Scope of Limited Warranty.  Subject to the limitations set forth below, CEC warrants to the owner of each Product that the Product and any Software installed on the Product shall be free from material defects in workmanship for a period of one (1) year from the date of original purchase (the “Warranty Period”).  The limited warranty set forth in this Section may be referred to as the “Limited Warranty”.  If the Product fails to conform to this Limited Warranty during the Warranty Period, CEC will, at its sole discretion, either (1) repair or replace any defective Product; or (2) accept the return of the Product and refund the money actually paid by the original purchaser for the Product. Repair or replacement may be made with a new or refurbished product or components, at CEC’ sole discretion. If the Product is no longer available, CEC may, at CEC’ sole discretion, replace the Product with a similar product of similar function. This is your sole and exclusive remedy for breach of this Limited Warranty. Any Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of (1) ninety (90) days from the date of delivery of the repaired Product or replacement Product, or (2) the remaining Warranty Period. This Limited Warranty is transferable from the original purchaser to subsequent owners, but the Warranty Period will not be extended in duration or expanded in coverage for any such transfer.

 

(c)        What this Limited Warranty Does Not Cover.  This Limited Warranty does not cover any of the following (collectively, “Ineligible Products”):  (1) Products marked as “sample” or “Not for Sale”, or sold “AS IS”. (2) Products that have been subject to: (A) modifications, alterations, tampering, or improper maintenance or repairs; (B) handling, storage, installation, testing, or use not in accordance with any user guide or other instructions provided by CEC; (C) abuse or misuse of the Product; (D) breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (E) Acts of God, including but not limited to lightning, flood, tornado, earthquake, extreme temperatures or hurricane. (3) Any non-CEC branded hardware products, even if packaged or sold with CEC hardware.  (4) Consumable parts, including batteries, unless damage is due to defects in materials or workmanship of the Product. 

 

(d)       DISCLAIMER OF WARRANTIES.  EXCEPT AS STATED ABOVE IN THIS LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CEC DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CEC ALSO LIMITS THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES OR CONDITIONS TO THE DURATION OF THIS LIMITED WARRANTY. 

 

(e)        LIMITATION OF DAMAGES.  IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL CEC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS LIMITED WARRANTY OR THE PRODUCT OR SOFTWARE, AND CEC’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LIMITED WARRANTY OR THE PRODUCT OR SOFTWARE WILL NOT EXCEED $25,000.00 U.S. 

 

(f)        LIMITATION OF LIABILITY.  WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS”, AND “AS AVAILABLE”. CEC DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE OR THAT PRODUCT INFORMATION OR USE OF THE SERVICES OR PRODUCT WILL PROVIDE SAFETY IN YOUR HOME OR AT YOUR POOL. YOU AGREE THAT YOUR USE OF ALL PRODUCT INFORMATION AND OF THE PRODUCT ITSELF IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND CEC DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION OR PRODUCT. PRODUCT INFORMATION IS NOT INTENDED AS A SUBSTITUTE FOR DIRECT MEANS OF OBTAINING INFORMATION ABOUT YOUR POOL BY (FOR EXAMPLE) SUPERVISING THE USE OF YOUR POOL, OBSERVING THE WATER LEVEL IN YOUR POOL, AND INDEPENDENTLY VERIFYING YOUR POOL CHEMISTRY. 

 

(g)       YOUR RIGHTS AND THIS LIMITED WARRANTY.  This Limited Warranty gives you specific legal rights, and you may also have other rights which vary from State to State.  Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.  Some States do not allow exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.  The terms of this Limited Warranty will apply to the extent permitted by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction and you may wish to contact a relevant consumer advisory service.

 

8.         Return Policy. The terms and conditions of this Section apply to any return of Products under the 30-day Return Period or the Limited Warranty.

 

(a)        To initiate a return, Customer must provide the following information to CEC within the 30-day Return Period or the Warranty Period (whichever applies) via email at customerservice@cfloat.co:(1) details on where and when the Product was purchased, (2) the purchase price, (3) the reason for returning the Product, and (4) Customer’s return address, telephone number, and email address. 

 

(b)       CEC will use the information provided by Customer to provide Customer with a Return Materials Authorization number ("RMA"). To receive a refund, Customer must return the Product (and any promotional merchandise supplied with the Product) with the RMA number in its original shipping box or similar packaging, insure the Product for its full value, and ship the Product to CEC at the address listed on the packing slip within the 14 days following the day Customer obtained the RMA number. 

 

(c)        CEC will reimburse Customer for shipping if: (1) Customer follows the return instructions stated in this Section and any other instructions provided by CEC; and (2) either (A) Customer initiates the return within the 30-day Return Period, or (B) Customer initiates the return within the Warranty Period and the other terms of the Limited Warranty are satisfied.

 

(d)       Any refund payable by CEC per the 30-day Return Period or the Limited Warranty will be calculated as follows: (1) Customer’s original delivery cost (up to the value of CEC’s Ground delivery option) will be included in the refund. (2)  If Customer received any promotional merchandise or discount in connection with the Purchase (such as a discount for purchasing multiple Products in one transaction), the total value of the promotional merchandise and/or discount will be subtracted from the refund. 

 

  1. Export Restrictions. Customers who access or use any Product or Software from jurisdictions outside the United States do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including (but not limited to) export and import regulations, embargoes, and other legal restrictions.  Customer agrees that Customer shall comply with all such legal restrictions.

 

  1. Interpretation.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to California’s choice-of-law provisions.  The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms and conditions to give them such effect.  Unless the context clearly requires otherwise, all references in this Agreement to the plural will include the singular, and all references to the singular will include the plural; all references to gender will include the masculine, feminine, and neuter genders; the words "shall," "will," or "agrees" are mandatory, and the word "may" is permissive; the word "or" is not exclusive; the words "includes" and "including" are not limiting; and the words "day" or "days" refer to calendar days. Headings are provided for convenience only and shall not be considered in interpreting this Agreement.

 

10.       Electronic Communications.  You are communicating with CEC electronically when you use the Store or send email to CEC. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

11.       Jurisdiction.  The parties hereby consent to the jurisdiction of the courts of the State of California, and agree that any disputes arising out of or related to this Agreement shall be resolved in the State of California, to the exclusion of any other jurisdiction.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to California’s choice-of-law provisions, and shall be deemed to have been entered into in Alameda County, California.  

 

12.       Force Majeure. Except for payment obligations, neither CEC nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including (but not limited to) natural disaster, civil disturbance, acts of terrorism or war, cyber attacks, labor conditions, governmental actions, acts of God, or interruption or failure of the Internet or any utility service.

 

13.       Assignment. Except as provided below, neither this Agreement, nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent.  Either party may assignthis Agreementwithout the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets.  Furthermore, if Customer transfers a Product to a third party, Customer may transfer Customer’s rights and obligations under this Agreement with respect to such Product to the third party.  The third party will be required to consent to the terms of this Agreement in order to operate the Product.  Any attempt to transfer or assign this Agreementexcept as permitted under this Section will be null and void.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

 

14.       Notices.  All notices between the parties shall be in writing and shall be deemed duly served when sent by email to the following email addresses:

 

For Customer:  the email address provided by Customer in Customer’s account profile.  CEC is not responsible if an email fails to reach Customer because: (a) the notice gets caught by Customer’s SPAM filter; (b) Customer provides the wrong email address or fails to update Customer’s address; or (c) there are other communications issues beyond CEC’s control that prevent email from reaching Customer.

 

For CEC: salesterms@cfloat.co

 

15.       Entire Agreement, No Waiver. This Agreementconstitutes the entire agreement of the parties with regard to their subject matter.  It supersedes all previous written and oral agreements and communications regarding its subject matter, and contains all of the covenants and agreements between the parties with respect to its subject matter.  No waiver of any term of this Agreementshall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreementshall not constitute a waiver of such right or provision.  Except as otherwise described above, this Agreement may be modified or amended solely by means of a written agreement signed by both parties.