Terms of Use

Intellectual Property

All Site design, materials, text, graphics, photos, videos, interfaces, and the selection and arrangements thereof (collectively, the “Content”) are owned, controlled or licensed by Fox Pools & Spas. You may access, view, print and download the Content, as allowed herein, subject to your compliance with the Terms of Use and for your personal, non-commercial use. Permission is granted to electronically copy and to print hard copy portions of the Site for the sole purpose of placing an order with Fox Pools & Spas. You may not remove or modify any copyright, trademark or other proprietary notice contained in any content. Any other use of materials on this Site, including reproduction for purposes other than those noted above, modification, distribution, or republication, without prior written permission of Fox Pool’s & Spas is strictly prohibited.

Disclaimer

THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS CONTAINED IN THE SITE, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTY, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOX POOLS & SPAS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH INFORMATION, SERVICES, PRODUCTS, AND MATERIALS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL ELEMENTS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. FOX POOLS & SPAS DOES NOT WARRANTY THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, FOX POOLS & SPAS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE. NOTHING IN THIS SECTION LIMITS THE TERMS OF ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF SUCH PRODUCT THAT IS SOLD TO USE THROUGH THE SITE.

Fox Pools & Spas often obtains item photographs from third party vendors and/or manufacturers. We do not investigate to determine if information is accurate nor can we provide assurance that all data is free of typographical errors. We cannot guarantee information displayed on the Site to be 100% accurate.

Certain activities provided via the Site may be covered by U.S. Patent 5,930,474.

Limitation of Liability

IN NO EVENT SHALL FOX POOLS & SPAS OR ITS SUBSIDIARIES, AFFILIATED COMPANIES, EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF FOX POOLS & SPAS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SITE, OR ANY INFORMATION OR MATERIALS PROVIDED ON THE SITE. FOX POOLS & SPAS IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) COMPENSATORY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND/OR CLAIMS OF THIRD-PARTIES.

Indemnification

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FOX POOLS & SPAS, ITS SUBSIDIARIES, AFFILIATED COMPANIES, EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, LIABILITIES, COSTS OR EXPENSES, INCLUDING REASONABLE ATTORNEY FEES, RESULTING OR ARISING OUT OF YOUR BREACH OF ANY OF THESE TERMS OF USE OR MISUSE OF THE SITE.

User Accounts

Access to your account on the Site is accomplished through the use of an email address and a password, which you will create. Your password should be kept strictly confidential to prevent unauthorized use. You agree to notify Fox Pools & Spas promptly of any unauthorized use of your password and you will remain liable for any use of the Site until you notify Fox Pools & Spas of the unauthorized use of your password. When you create an account on the Site, we will automatically enroll you in our newsletter which will provide you with information, updates and notice of sales and discounts.

Order Acceptance

The receipt of an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Fox Pools & Spas reserves the right to accept or decline any order, or to limit the order quantity on any item and/or refuse service to any customer. In the event Fox Pools & Spas declines, limits or modifies your order, Fox Pools & Spas will attempt to contact you using the email address you provided. In the event Fox Pools & Spas cancels an order or a part of an order that you have already been charged for, Fox Pools & Spas will refund you the full amount of the canceled portion of the order. Verification of information may be required prior to the acceptance of any order.

Payment Policies

You are responsible for, and agree to pay promptly, for all your purchases and charges to your account, including applicable taxes. In the event a check is returned or electronic payment is denied, Fox Pools & Spas may impose a fee to cover the cost of any charges incurred by Fox Pools & Spas. You shall be responsible and liable for any fees, including attorneys’ fees and collection costs, that Fox Pools & Spas may incur in its efforts to collect any unpaid balances from you. If payment cannot be charged to your credit card or a payment is returned to for any reason, including chargeback. Fox Pools & Spas reserves the right to suspend or terminate your access to the Site, including your customer account.

Suspension of Service

Fox Pools & Spas may suspend or terminate your access to the Site at any time for any reason with or without notice to you. You are liable for any orders or charges you place prior to such termination.

Delivery of Services

Your order(s) will be shipped to the address designated by you. Orders may arrive in multiple packages and on separate days with multiple Product Order forms (POs) depending on type of and volume of product ordered. Some products may have restricted delivery within the United States. Fox Pools & Spas shall not be liable for delays or prevention of delivery due to unforeseen circumstances, or acts of God, which may include, but is not limited to, weather conditions, traffic conditions, and/or mechanical difficulties.

Tax Exempt Transactions

The Site does not support tax-exempt transactions for residential customers. All qualified tax-exempt residential customer transactions can be made via mail order at 615-824-1431 or at our store location. If you are a Fox Pools & Spas Commercial Customer with a company or business that is tax-exempt, your order will be displayed without tax. All orders placed through the Site are displayed with tax as an estimate. All estimates for tax will be corrected upon shipment of the product(s) ordered.

Links to Other Websites

The Site may contain links to other websites maintained by third-parties (“Third-Party Sites”). Fox Pools & Spas provides links to Third-Party Sites solely as a convenience to you and for no other purpose, and such links do not imply endorsement by Fox Pools & Spas of the Third-Party Sites. If you choose to access any Third-Party Sites, you do so at your own risk and by accessing them you leave the Site. Fox Pools & Spas does not warrant or make any representation about the substance, quality, functionality, accuracy, fitness for a particular purpose, merchantability or any other representation about any Third-Party Sites or their content. Please review the privacy policies and conditions of use for all Third-Party Sites you visit.

User Generated Content

Any content submitted to the Site, including all reviews, comments, communications and the like (herein known as “Comments”), become the property of Fox Pools & Spas upon submission. By submitting the Comments, you acknowledge your legal rights to submit such information and agree to the assignment to Fox Pools & Spas of all rights, titles and interest both in the United States and Internationally for all Copyrightable and intellectual properties in the Comments.

Once the Comments are submitted, Fox Pools & Spas may use the Comments in any fashion it deems appropriate. By using the Comments, Fox Pools & Spas is under no obligation to maintain any Comments in confidence, to compensate for any Comments, or to respond to the authors Comments. Further, you agree to not hold liable Fox Pools & Spas liable for any costs and/or damage caused from instructions or recommendations from comments. Fox Pools & Spas recommends any work be performed by a licensed professional and that product label directions always be followed. You agree that any Comments submitted by you to the Site will not violate the preceding sentence or any right of any third-party, including copyright, trademark, privacy or other personal or proprietary right(s), and will not cause injury to any person or entity. You further agree that all Comments submitted by you to the Site will not contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “SPAM”.

Further, Fox Pools & Spas reserves the right, though not the duty, to monitor and/or edit or remove any Comments submitted to the Site. You grant Fox Pools & Spas the right to use your name (or alias), supplied at your submission in connection with any Comments. Since we may desire to respond on some Comments, you agree not to supply a false email address, impersonate any person or entity, or otherwise provide misleading information as to the origin of any Comments you submit.

Wireless and Location-Based Features

The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.

You agree that as to the Wireless Features for which you are registered, we may send communications via such features or apps to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your account(s) on the Service to reflect the changes.

If you have enabled GPS, geo-location or other location-based features on any mobile app(s) or feature(s), you acknowledge that your Device location will be tracked and may be shared with others consistent with the Privacy Policy. Some mobile app(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate Device location tracking by us by uninstalling any mobile app(s) or feature(s). The location-based services offered in connection with our mobile app(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use.

Water Tests

The information contained in any water test analysis provided to you by Fox Pools & Spas is provided solely as a courtesy by Fox Pools & Spas to its customers. Fox Pools & Spas makes every effort to provide accurate recommendations based upon current ANSI and APSP standards, but codes and regulations change and Fox Pools & Spas assumes no liability for any omissions or errors in this analysis or the outcome of any project. You must always exercise reasonable caution, carefully read the label on all products, follow all product directions, follow any current codes and regulations that may apply, and consult with a licensed professional if in doubt about any procedures. Fox Pools & Spas assumes no legal responsibility for your reliance or interpretation of the data contained in any water test analysis and makes no representations or warranties of any kind concerning the quality, safety or suitability of the information, whether express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.

Product-Related Matters

We try to describe the products and/or services offered on this Service as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free.

Dispute Resolution

By using the Site, you hereby agree that certain portions of the Dispute Resolution section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Fox Pools & Spas agree that we intend this Dispute Resolution section satisfies the “writing” requirement of the Federal Arbitration Act.

A) Attempt to Resolve Disputes and Excluded Disputes
If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Fox Pools & Spas actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section D, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section A. Your notice to us must be sent via email to: webit@foxpoolsandspas.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Fox Pools & Spas and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Fox Pools & Spas to resolve the Dispute or Excluded Dispute on terms with respect to which you and Fox Pools & Spas, in each of our sole discretion, are not comfortable.

B) Binding Arbitration
If we cannot resolve a Dispute as set forth in Section A. (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND FOX POOLS & SPAS (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE.

For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Fox Pools & Spas and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.

Fox Pools & Spas and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section H below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Fox Pools & Spas regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Fox Pools & Spas consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Sumner County, Tennessee. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Fox Pools & Spas to pay a greater portion or all of such fees and costs in order for this Dispute Resolution section to be enforceable, then Fox Pools & Spas will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and HTTP://WWW.ADR.ORG and JAMS: 800.352.5267 and HTTP://WWW.JAMSADR.COM.

C) Limited Time to File Claims
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION A) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable:

• by delivery of written notice as set forth above in Section A;
• filing for arbitration as set forth in Section B; or
• filing an action in state, Federal or provincial court.

D) Injunctive Relief
The foregoing provisions of this Dispute Resolution Section will not apply to any legal action taken by Fox Pools & Spas to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Fox Pools & Spas’ intellectual property rights (including such Fox Pools & Spas may claim that may be in dispute), Fox Pools & Spas’ operations, and/or Fox Pools & Spas’ products or services.

E) No Class Action Matters
YOU AND FOX POOLS & SPAS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.

Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section F.

Notwithstanding any other provision of this Dispute Resolution Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

F) Jurisdictional Issues
Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted, if you are a resident of the U.S., in state or Federal court in State of Tennessee in Sumner County. Accordingly, you and Fox Pools & Spas consent to the exclusive personal jurisdiction and venue of such courts for such matters.

G) Small Claim Matters Are Excluded from Arbitration Requirement
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

H) Governing Law
These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Tennessee, without regard to its conflicts of law provisions.

Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY FOX POOLS & SPAS (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF FOX POOLS & SPAS.

Terms Applicable For Apple iOS

If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”),

1. To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Fox Pools & Spas and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
2. The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Service.
3. You acknowledge that Fox Pools & Spas, and not Apple, is responsible for providing the Service and Content thereof.
4. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
5. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
6. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Fox Pools & Spas, Fox Pools & Spas and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
7. Further, you agree that if the Service, or your possession and use of the Service, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
8. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
9. When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.