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Balboa Direct Terms & Conditions

Last Updated: 12/30/19


PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU ON ONE HAND, AND BALBOA WATER GROUP OR ONE OR MORE OF ITS CORPORATE AFFILIATED ENTITIES AND DIVISIONS: BALBOA WATER GROUP, A DELAWARE CORPORATION; BALBOA INSTRUMENTS, INC., A CALIFORNIA CORPORATION; HYDROAIR; HYDROAIR INTERNATIONAL; AND GG INDUSTRIES (COLLECTIVELY “BALBOA WATER”, “BWG”, “WE”, or “US”). SECTION 15 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS[A1] [A2] THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 15 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.


1. Purpose
Your access to and use of (a) the website(s) located at www.balboawatergroup.com, www.balboawater.com, or www.controlmyspa.com (including controlmyspa.com sub-domains), and other sites that are linked to these website)s) or affiliated with this site (the "Site" or collectively the "Sites"), (b) products or services through the Sites (and any updates thereto) and (c) certain software, including that may be downloaded to your mobile device (and any updates thereto) (collectively the "Products" and "Services"), is governed by these Terms and Conditions.


2. Eligibility
By accessing or using the Sites and Services, clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, you hereby represent that: (a) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at this link or through the Sites; (b) you are 16 or over; and (c) you have the authority to enter into the Agreement personally. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you many not access or use the Sites or Services.


3. Additional Terms for Particular Products and Services
Products. For more information regarding the terms that apply to purchases of Products, please see our Terms of Sale, Shipping Policy and Return Policy. You accept and agree to abide by all such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such Service or feature. Our obligations, if any, with regard to products are governed by the agreements pursuant to which they are provided, and nothing on the Sites alters such Product agreements. For more information about specific product terms, please contact our customer service team by clicking here clicking here.

Services.
BWG reserves the right to require payment of fees for certain features of the Services. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Services in connection with such features. BWG reserves the right to change its price list for Services and to institute new charges for Services at any time. Use of the Services by you following posted changes to its price list or fees constitutes your acceptance of any new or increased charges.

Open Source Software
Certain items of software included with the product software are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to our end user license agreements. Instead each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. BWG may make changes to any Products or Services offered on the Sites, or to the applicable prices for any such Products or Services, at any time, without notice. The materials on the Sites with respect to Products or Services may be out of date and we make no commitment to update the materials on the Sites with respect to such Products and Services.

If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the Sites, or for any specific Products or Services offered on or through the Sites, the latter terms shall control with respect to your use of that portion of the Sites or the specific Products and Services.


4. Account and Access

a.) Account. In order to enjoy the full scope of the Services, you are required to register and open an account (the "Account"), by providing us with certain details (for further information, see the Privacy Policy). You must provide us with accurate and complete information when opening an Account and keep it updated at all times. You may not open more than one Account.

b.) Access. By entering into this Agreement, you will be granted a revocable license to access your Account on the Sites without charge. Your access privileges, however, are conditioned on your adherence to the terms of this Agreement. We reserve the right to temporarily deny you access to the Sites or permanently terminate your access privileges at any time if, in our sole discretion, you have failed to abide by the terms of this Agreement or appear to us likely to do so. By agreeing to grant you access, we do not obligate ourselves to do so or to maintain the Sites, or to maintain it in its present form, and we expressly reserve the right to modify, suspend or terminate your access privileges.

c.) Privileges Nontransferable. Your access privileges may not be transferred by you to any third parties.

d.) Cancellation. If you wish to cancel the Account, you may e-mail us at any time at Info@balboawater.com and it will be cancelled within a reasonable period of time. Once the Account is cancelled, its information may be deleted of unavailable and we will not be responsible for any loss in this respect.

e.) Security. You further agree not to disclose to anyone your confidential password. The Account is yours and you shall not allow anyone else to use it without our prior written approval. You must immediately notify us of any unauthorized use of your Account or breach of it security. We wil not be responsible for any damage which is caused to you or others if you do not act in accordance with the Terms or Privacy Policy.

f.) Suspension/Termination. Upon termination, by you or us: (i) You will cease any further use of the Services and any information that was made available to you prior to the termination; (ii) All rights granted to you under the Terms and Privacy Policy will automatically terminate; (iii) Certain data (e.g. Content, submissions, etc.) may be deleted and you will have no right or claim in this respect; and (iv) The provisions of these Terms that by their nature must survive the termination shall so survive. Without limiting the generality of the foregoing the Arbitration, Intellectual Property, Disclaimer of Liability, Limitation of Liability, Indemnification, Jurisdiction and "General" sections will survive the termination of these Terms.



5. User Representations and Warranties
By using the Sites, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation is for your sole, personal use. When using the Sites, you agree to comply with all applicable laws, including those of the country, state and city in which you are present while using the Sites.

By using the sites, you agree that:
a.) The information you provide to us or otherwise communicate with us is accurate.
b.) You will not use the Sites in any way that could damage, disable, overburden or impair any of our servers, or the networks connected to any of our servers.
c.) You will not attempt to gain unauthorized access to any part of the Sites and/or to any service, account, resource, computer system and/or network connected to any of our servers.
d.) You will not deep link to the Sites or access the Sites manually or with any robot, spider, web crawler, extraction software, automate process and/or device to scrape, copy or monitor any portion of the Sites or any content on the Sites.
e.) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Sites.
f.) You may not use any "deep-link", "page-scrape", "Robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Sites or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Sites or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Sites. BWG reserves the right to bar any such activity.
g.) You may not attempt to gain unauthorized access to any portion or feature of the Sites, or any other systems or networks connected to the Sites or to any BWG server, or to any of the services offered on or through the Sites, by hacking, password "mini" or any other illegitimate means.
h.) You may not probe, scan or test the vulnerability of the Sites or any network connected to the Sites, nor breach the security or authentication measures on the Sites or any network connected to the Sites. You many not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Sites, or any other customer of BWG, including any BWG account not owned by you, to its source, or exploit the Sites or any service or information made available or offered by or through the Sites, in any way where the purpose is to reveal any information, including but not limited to personal identification or other personal information, other than your own information, as provided for by the Sites.
i.) You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Sites or BWG's systems or networks, or any systems or networks connected to the Sites or to BWG.
j.) You agree not to use any device, software or routine to interfere or attempt to interfere with proper working of the Sites or any transaction begin conducted on the Sites, or with any other person's use of the Sites.
k.) You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to BWG on or through the Sites or any service offered on or through the Sites. You many not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
l.) You may not use the Sites or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of BWG or others.
m.) You also agree that you will not contribute any submission or otherwise use the Services or interact with the Services in a manner that: violates any law or regulation; infringes or violates the intellectual property rights of anyone else; is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene or otherwise objectionable; jeopardizes the security of your account of anyone else's; copies or stores any significant portion of the Content; or decompiles, reverse engineers, o otherwise attempts to obtain the source code of the Services (except (i) for sample or tutorial code examples that we provide on the Services which are clearly marked as such, or (ii) to the extent such restriction is prohibited by applicable law).
n.) Third Party Service providers used by BWG. You acknowledge that the Sites use third party service providers to enable some aspects of the Services - such as push notifications through mobile operating system vendors and mobile carriers. You agree not to rely on the Services for any life safety or time critical purpose.

6. Export Laws
You agree to comply with all applicable laws and regulations, including without limitation U.S. and E. U. export and re-export control laws and regulations regarding the transmission of technical data exported from the United States of the country in which you reside. You further agree to comply with all local laws, regulations and rules regarding online conduct and acceptable Content.


7. User Submission and Content
We may provide you with interactive opportunities through the Sites. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Sites. You hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, translate, create derivative works, distribute and/or otherwise use the User Content in connection with our business and in all forms now known or hereafter invented ("uses"), without notification to and/or approval by you, except as otherwise required by law.

Feedback
You agree that any submission of any ideas, suggestions, and/or proposals to us through our suggestion, feedback, or similar pages ("Feedback") is at your own risk and that we have no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to us a perpetual, irrevocable transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback, except as otherwise required by law.

Ratings and Reviews.
To the extent that you are asked to rate and post reviews of brands and/or companies ("ratings" and "Reviews"), such Ratings an dReviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by us and do no represent our views. We do not assume liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews.

8. Intellectual Property Ownership
We (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Sites. This agreement is not a sale and does not convey to you any rights of ownership in or related to the Sites, or any intellectual property rights owned by us. Our name, logo, and the product names associated with the Sites are our trademarks or belong to third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Sites.

9. DMCA Policy
If you are notifying BWG of alleged copyright infringement, please be sure to provide the following information in the form required by 17 USC Section 512: • A description of the copyrighted work that you allege is being infringed, or, if multiple copyrighted covered by a single notification, a representative list of such works; • A description of the allegedly infringing material and information sufficient to permit us to locate the material; • Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or an electronic mail address; • A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, or its agent, or the law; and • A statement by you that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed.

We may terminate the privileges of any user who uses the web site unlawfully to transmit copyrighted material without a license, express consent, valid defense or fair use exemption to do so.

DMCA Requests can be made by Clicking here.

10. Privacy
We have adopted a Privacy Policy outlining our personal data collection and use practices. Please refer to it for details about how we collect and use your personal information. By agreeing to the terms of this Agreement, you are automatically agreeing to our Privacy Policy, which is incorporated herein by reference.


11. Third-Party Interactions
The Sites may contain links to third-party websites and advertisements (collectively, "Third-Party Websites & Advertisements"). When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Sites and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such third-Party Websites & Advertisements are not under our control. We are not responsible for any Third-Party Websites or any third-Party Advertisements. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary and appropriate before proceeding with any transaction with any third party.


12. Indemnification
You agree to indemnify and hold us and our officers, directors, employees, agents and affiliates (each, an "Indemnified party") harmless, from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorney's fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Sites; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Sites. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section , you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorney fees incurred by the Indemnified Party. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Sites. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Sites.

13. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SITES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SITES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SITES IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SITES OR OUR SERVICES, OR THE SERVICES, TEXT, GRAPHICS OR LINKS. WE DO NOT WARRANT THAT THE SITES WILL OPERATE ERROR-FREE OR THAT THE SITES IS FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SITES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.


14. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEY'S FEES) IN EXCESS OF THE FREES ACTUALLY PAID BY YOU IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS ECTION ALLOCATED THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT OTHTE SITES, OR ANY OTHER ITEMS OR SERVICES PROVIDED BY US, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE SITES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SITES) ARE PROVIDED "AS IS" AND THAT WE MAKE NO WARRANTY THAT THE SITES WILL BE FREE FROM BUGS FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SITES WILL BE UNINTERRUPTED.


15. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Sites or as a consumer of our services, to any advertising or marketing communications regarding us or our Sites, to any products or services sold or distributed through the Sites that you received as a consumer, or to any aspect of your relationship or transactions with us as a consumer of our services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) either party may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.

IF YOU AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, [contact details here – make sure this mailbox is checked!!]. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/ JAMS’s rules are also available at jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.


c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of each party. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and us.


d) Waiver of Jury Trial. YOU AND BALBOA WATER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Balboa Water are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

e) Waiver of Class or Consolidated Actions. YOU AND BALBOA WATER AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Balboa Water is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 16.

f) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Balboa Water can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Balboa Water in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your email address (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: [email address – you must check this email address!!]. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

g) Survival. This Arbitration Agreement will survive any termination of your relationship with us.

h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.

16. Governing Law, Dispute Resolution
To the extent the parties are permitted under this Agreement to initiate litigation in a court, you agree that all matters relating to your access to or use of the web site, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Orange County, California, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are a consumer based in the European Union. If you are a consumer based in the European Union, you may make a claim in the courts of the country where you reside. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. Claims made under the separate terms and conditions of purchase for products are not subject to this limitation.


17. Termination
At its sole discretion, we may modify or discontinue the Sites, or may modify, suspend or terminate your access to the Sites, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Sites, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Sites is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.


18. Void where prohibited
BWG administers and operates the www.balboawater.com, www.balbowater.com and www.controlmyspa.com web sites from its location in Costa Mesa, CA USA; other BWG sites may be administered and operated from various locations without or outside of the United States. Although the web sites are accessible worldwide, not all features, products or Services discussed, referenced, provided or offered through or on the web sites are available to all persons or in all geographic locations, or appropriate or available for use in certain countries outside the United States. BWG reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or Service made on the web sites is void where prohibited. If you choose to access the web site(s) from outside the United States, you do so on your own initiative, and you are solely responsible for complying with applicable local laws.


19. Miscellaneous
You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or Service offered on the web site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations. If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and BWG with regard to your use of the web site, and any and all other written or oral agreements or understandings previously existing between you and BWG with respect to such use are hereby superseded and cancelled. Other than as provided in a written purchase agreement you enter into with BWG, BWG will not accept any counteroffers to these Terms of Use, and all such offers are hereby categorically rejected. BWG’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by BWG of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between BWG and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.

The web site may contain references or cross references to BWG products, programs and Services that are not announced in your country. Such reference does not imply that BWG in your country intends to announce such products, programs or services.


20. Apple/iPhone and iPad Applications
These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

a) Both you and BWG acknowledge that the Terms are concluded between you and BWG only, and not with Apple, and that Apple is not responsible for the Application or the Content

b) The Application is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Services;

c) You will only use the Application in connection with an Apple device that you own or control;

d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;

f) You acknowledge and agree that BWG, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;

g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, BWG, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

i) Both you and BWG acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

j) Both you and BWG acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.

21. General
a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you and us or any third-party provider as a result of this Agreement or use of the Sites.


b) Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not effect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

c) Electronic Communications. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights

d) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

22. Terms of Sale

a) Ordering Products

You must be 18 years or older, and have a valid credit card, with full authority to use it, to submit an order for products through any of our Sites While we may have provided product information either over the telephone or via email, you agree that it is your sole responsible for the proper configuration of and appropriate selection of products for your use

b) Prices and Product Availability:
All prices listed on the Sites are subject to change. In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right, prior to the acceptance of your order pursuant to our Order Acceptance Policy described below, to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge. The availability of products and other items on each of the Sites may change at any time, without notice}

c) Clearance Items:
All "Clearance Items" are sold on an "as-is" and "as available" basis without representations, guarantees, or warranty (including fitness for any particular purpose) of any kind, to the fullest extent as permitted by law. There are no returns on clearance items. No exceptions.

d) Special "Offers" or "Discounts":
From time to time we may offer special offers or discounts to our customers through the Sites, Facebook Twitter, e-mail, U.S. Mail, or other means. These discounts are offered "as-is" and we ma, in our sole and absolute discretion, cancel, change, suspend or modify any aspect of the Offer/Discount at any time, including the availability of any Offer/Discount, without notice. We may, in our sole and absolute discretion, terminate or suspend any customer's participation an y Offer/Discount for breach of these Terms and Conditions, or for taking any actions that are inconsistent with the intent of these Terms and Conditions. We shall be the sole determiner in cases of suspected abuse, fraud, or breach of these Terms and Conditions or intent of these Terms and Conditions. Any decision we make relating to termination or suspension of any customer's participation in the Offer/Discount shall be final and binding in all respects. Any Offer/Discount shall only be valid for the time period specified in the Offer/Discount and is subject only to the product or products in which the offer specifies. Unless otherwise listed or noted, Offers/Discounts are not subject to use in conjunction with any other Offer/Discount currently being offered. It is the responsibility of the customer to use the Offer/Discount at the time of purchase. If a customer fails to use the Offer/Discount during the time of purchase, the Offer/Discount will NOT be credited to the customer subsequent to the purchase. There will be NO EXCEPTIONS. Offers/Discounts may include additional limitations such as limitations on usage or requirements for purchasing other products in conjunction with the customer purchase. We reserve the right to substitute any product or service being offered as complimentary or free within the scope of the Offer/Discount. Any Offer/Discount that does not place a usage limitation is limited to one use per customer, organization, or entity.

e) Order Acceptance Policy:
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.

You must provide a valid email address for purposes of providing a receipt for confirming an order for the purchase of products was received and for providing a detailed description and price for the product purchased. If a valid email address is not provided, a written notice will be attempted to be mailed to the address provided for delivery of the products. In no case, you agree that the non-receipt of a notice does not constitute the acceptance of an order by us.

f) Order Cancellation Policy:
We do not allow orders to be edited or cancelled after acceptance of the order pursuant to our Order Acceptance Policy described above. Any termination of the order after such time is considered a cancelled order, whether or not the product has shipped and is subject to a 25% cancellation fee.

Should you refuse the delivery of products or otherwise be unavailable to accept delivery of the products, resulting in a returned shipment, you will be charged a 25% cancellation fee. Any damage to the product, missing parts, manuals shipping material, will be deducted from the refund in addition to the cancellation fee. The minimum cancellation fee will be $15.00.

g) Payment Terms:
For each product or service you order on any of the Sites, you agree to pay the price applicable for the product (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. We will automatically bill your credit card submitted as part of the order process for such price. All prices are non-refundable. Without limiting other remedies, we reserve the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts.

h) Credit Card Authorizations:
By providing personal demographics, billing and credit card information, you warrant to us that you are the individual named on the Credit Card and that you have authorization to use Credit Card for the purchases of products and authorize us to charge credit card for the amount shown on the screen at the time of sale.

i) Sales Taxes:
Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the Products. Each customer shall be solely responsible for all sales taxes, or other taxes, customs, import/export charges, or similar governmental charges, on orders shipped to any other state or on orders shipped outside the United States.

We shall automatically charge and withhold the applicable taxes based on your shipment address. For international shipments, you agree to pay any additional fees charged by the government such as VAT, duty or other taxes or fees. Tax will be collected for purchases made from a Buyer who has a billing or shipping address within the states of California.

j) Shipping and Delivery:
We use UPS as our delivery service provider, and will attempt to deliver a product on the requested delivery day. You acknowledge that requested delivery dates are non-binding estimates only and that you have no claim against us for any delays or early deliveries. We reserve the right to make deliveries in installments, which shall not relieve you from your obligation to accept and pay for remaining deliveries. Our service providers do not telephone prior to delivering packages, and we cannot guarantee the time of delivery.

All products are deemed accepted upon our delivery of the product to you or your designated recipient’s address.

You should inspect the products immediately upon receipt and shall notify us in writing to obtain a Return Merchandise Authorization (RMA) within five (5) calendar days of receipt if the product is damaged.

k) Professionally Installed Products:
Products sold by us are intended for installation by licensed professionals only. Improper use or installation could result in injury or death. Your local electrical and building codes may have specialized requirements for the installation and use of the product. You should check with your local authority to ensure you obtain all required permits, pay building fees and conduct inspections as may be required prior to use. You should ensure that your installer follows the National Electric Code and that you are protected with an external spa side shut-off that has an external Ground Fault Circuit Interrupter (GFCI) installed. Check with your contractor or electrician licensed in your state prior to use. As a safety precaution, you should always check all your components are in proper working condition prior to use including, the Ground Fault Circuit Interrupter, plumbing, electrical and safety devices as well as the temperature of water and testing the water for leaks of voltage into the water.

l) Disclaimer, Limitation of Warranty, and Warranty
WITH RESPECT TO ANY OF OUR GUARANTEES, OUR SOLE AND EXCLUSIVE OBLIGATION OR LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WILL BE, IN OUR DISCRETION, TO REFUND THE PURCHASE PRICE OR TO REPLACE AND DELIVER EQUIVALENT PRODUCT ITEMS, AS SOON AS REASONABLY POSSIBLE.

THE APPLICABLE CLAIM MUST BE BROUGHT WITHIN FOURTEEN (14) DAYS AFTER DELIVERY OR WE SHALL NOT BE LIABLE AND YOU WILL HAVE WAIVED ANY AND ALL RELATED CLAIMS REGARDING SUCH PRODUCT ITEMS.

NOTWITHSTANDING THE FOREGOING, ANY PRODUCT IS NOT ELIGIBLE FOR EXCHANGE OR REFUND UNLESS THEY ARE DELIVERED DAMAGED.

WHILE WE ENDEAVOR TO PROVIDE THE MOST ACCURATE, UP-TO-DATE INFORMATION AVAILABLE, OUR SITES (INCLUDING OUR SITE CONTENT) MAY BE OUT OF DATE OR INCLUDE OMISSIONS, INACCURACIES OR OTHER ERRORS. OUR SITES (INCLUDING OUR SITE CONTENT) ARE PROVIDED "AS IS" AND "AS AVAILABLE." WE DO NOT PROMISE THAT OUR SITES (OR SITE CONTENT OR SERVICES) WILL BE ERROR-FREE, TIMELY, SECURE, VIRUS FREE, OR UNINTERRUPTED, OR THAT THE USE OF OUR SITES (OR SITE CONTENT) WILL PROVIDE ANY SPECIFIC RESULTS.

EXCEPT FOR THE LIMITED GUARANTEE PROVIDED ABOVE IN THIS SECTION, WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, GUARANTEES, WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO OUR SITES (INCLUDING OUR PRODUCTS, SERVICES, AND SITE CONTENT) INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ACCURACY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS.

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction. If applicable law requires any warranties with respect to the products or services, all such warranties are limited to the duration of the applicable express guarantee above.

a. LIMITED PRODUCT WARRANTY:

Subject to the limitations set forth below, we warrant that our products will be free of defects in material and workmanship under normal use. We warrant that the products received will reasonably correspond to the description and photographs shown by the Sites. Products are not warranted to be fit for a particular purpose or use.

b. LIMITATION OF WARRANTIES:

OUR SOLE RESPONSIBILITY FOR DEFECTS IN MATERIALS AND WORKMANSHIP IS STRICTLY LIMITED TO REPAIR OR REPLACEMENT AS SET FORTH IN THIS WARRANT STATEMENT. WE EXPRESSLY DISCLAIM AND EXCLUDE ALL EXPRESS AND IMPLIED WARRANTIES OR THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL LIABILITIES TO THIRD PARTIES. In no event shall we be liable to purchaser for any amounts in excess of the purchase price paid for the individual product which is the subject of the cause of action.

b. WARRANTY COVERAGE:

If a product proves to be defective in material or workmanship during the warranty period then we will, at our sole option, either repair or replace the product wiht like prdouct. You will have to pay for all disassembly, removal, refitting and installation costs. Replacement product may include remanufactured or refurbished parts or components. Replacement product may include an appropriate substitute product. All warranty claims must be applied for within sixty-days (60) from when the defect becomes known.

d. WARRANTY PERIOD:

All products purchased on the Sites carry a 90-day warranty period from the date of delivery.

e. WARRANTY EXCLUSIONS:

This warranty does not extend to and is void for any products that have been subjected to: Improper installation or storage; Improper maintenance; Repairs or alterations not authorized or performed by us; Accident, damage, abuse, misuse or problems with electrical power; Abnormal or unusual operating conditions or applications; Use not in accordance with product instructions for intended purposes, or use beyond rated capacity, or use in non-residential applications or multi-tenant residential common area applications of more than eight units; A purpose or application in any way different from that for which products were designed; Color variations within a product line or material are common within the industry. We do not warrant any product returned due to mismatching of a color to a particular line or material for which the color was selected.

f. Basis of Bargain:

THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SITES (INCLUDING THE PRODUCTS, SERVICES, AND SITE CONTENT) ON AN ECONOMICALLY ACCEPTABLE BASIS WITHOUT SUCH LIMITATIONS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF OUR SUPPLIERS.



m) Product Information Advice Liability:
Without a specific written agreement to the contrary, any product information, technical advice or other informational assistance furnished by us relating in any manner to the products will be accepted at your sole risk. We have no obligation to provide any information or assistance prior to receipt of the full purchase price from you for the products. In no event shall the liability of the company for losses incurred as a result of incorrect information or advice exceed the obligation to repair or replace the product in question with like product, and in no event shall we be liable for any amounts in excess of the purchase price paid for the individual product which is the subject of the cause of action. The liability for any losses incurred as a result of errors in information or advice shall lapse no later than one (1) year after the product has been delivered to you.

23.Unforeseen Circumstances (FORCE MAJEURE):
We shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, failure of any communications, telecommunications or computer system, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and we shall be entitled to a reasonable extension of its obligations. Performance, shipment and/or delivery shall be deemed to be suspended for so long as performance of the same is delayed due to causes beyond the company’s reasonable control, and the you agree to accept deliveries whenever such causes have been remedied in accordance with the terms of the "Shipping and Delivery" section above.


24. Contact Information
Info@balboawater.com or by CLICKING HERE


Feedback:
We welcome all comments, feedback, information, or materials regarding our Sites ("Feedback"), which you submit to us by email or otherwise through or in conjunction with any one of our Sites. Please note that Feedback shall be considered non-confidential and become the property of BalboaDirect.com. By submitting Feedback to us, you hereby assign, and agree to assign, to us of all right, title and interest in copyrights and other intellectual property rights on a worldwide basis to the Feedback, at no charge. We shall be free to use Feedback on an unrestricted basis.

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