SUNDANCE SPAS, INC

MOBILE APPLICATION AND WEBSITE

TERMS OF USE

Last Updated: August 1, 2023

1. Acceptance of the Terms of Use.

By accessing or using the Sundance Spas website and/or the mobile application, offered by Sundance Spas, Inc (“Sundance Spas,” “we,” “us” or “our”) at https://www.sundancespas.com and all associated pages and services (collectively referred to as our “Website”) and/or through the mobile application that you have downloaded, including all software therein (the “Mobile Application” or “App”), the Mobile Application and Website collectively referred to as the “Services”, you (the “User”, “your” or “you”) confirm that you have read, understand and agree to be bound by these terms of use (“Terms of Use” or “Terms”). Please read the Terms of Use carefully and print a copy for your records. These Terms also apply to your purchases of any products through the Services (the “Products”).

IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE THE SERVICES OR PRODUCTS.

PLEASE BE AWARE THAT SECTION 15 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND SUNDANCE SPAS HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST SUNDANCESPAS TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 15 OF THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST SUNDANCE SPAS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 15 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

2. Changes to these Terms of Use.

By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, We may notify you at the email address provided to us or by a posting in the Mobile Application or Website in the event that we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, in order to continue using the Services.

3. The Services are For Use by Individuals 18 Years of Age and Older.

While Sundance Spas stores, processes and transfers data of individuals of all age, including data regarding children based on their guardian’s or parent’s consent, the Services are intended solely to be accessed by natural persons who are eighteen (18) years of age or older, and any registration by, use of, or access to the Services by any person under 18 is unauthorized and in violation of these Terms of Use. We may terminate your use of the Services without notice if we believe you are less than 18 years old. By using the Services, you represent and warrant that, you are a natural person, you are 18 or older, and that you agree to and will abide by all of the terms and conditions of these Terms of Use.

4. Services Use Restrictions.

(a) Without our prior written consent, you may not:

(i) Use any automated means to access this Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);

(ii) Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any Services’ pages, or otherwise affect the display of any pages on the Services;

(iii) Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;

(iv) Use the Services in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; or

(v) Access, use or monitor our Services for benchmarking or any competitive purposes.

(b) We may terminate or disable your access to these Services for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms of Use.

5. User Representations.

(a) Parts of the Services may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including without limitation any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.

(b) In addition, you agree not to use the Services to:

(i) Except where authorized by us, register for more than one User account, register or operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;

(ii) Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;

(iii) Upload, post, transmit, share, store, or otherwise make publicly available through the Services any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers, unless expressly authorized to do so by that third party; and

(iv) Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services; or Use or attempt to use another’s account without authorization from that person, or create a false identity through the Services.

6. Information Posted through the Services; Third Party Offerings and Websites.

(a) As between us and you, all content made available on or through the Services, whether uploaded, published, or displayed by us, including designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement, except as provided in Section 10 (App Store) is the property of Sundance Spas (collectively the “Sundance Spas Content”). To the best of our knowledge, we use only content that we own or have permission to use. No Sundance Spas Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the owner’s prior written permission. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.

(b) You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identification, to the extent you are provided a password and identification; (c) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

(c) The Services may provide access to payment processing that is hosted and provided by third party service providers. As made available to you, third party service providers have additional terms and conditions that are different than these terms. To the extent not restricted by law or applicable agreements with third parties, Sundance Spas is not responsible or liable for any third party acts or omissions or services they may provide you.

(d) The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Sundance Spas does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.

(e) Accordingly, we are not responsible for the practices employed by third-party websites or services linked to or from our Services, including the information or content contained in such third-party websites or services, and these Terms of Use do not apply to them. Privacy notices on such linked websites may be different from our Privacy Policy. Your browsing and interaction with any third-party website or service, including those that have a link on or through our Services, are subject to that third-party's own rules, terms and privacy notices. You access such linked websites at your own risk.

7. Terms of Sale.

The following terms apply to your purchase of Products via the Services.

(a) Purchasing Products. The Services invite you to make us an offer to buy the Products shown on the pages. Your order is an offer to buy some of those goods, which we accept only by shipping the Products ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before shipment in the event of inaccuracies, errors, Product unavailability, or for any other reason.

(b) Product Descriptions. We attempt to describe Products, including their colors, as accurately as possible; however, the appearance of Products may vary as a result of the quality of your monitor and for other reasons. We also make no guarantees with respect to the accuracy, completeness, reliability, or currency of our Product descriptions.

(c) No Commercial Use. Products are sold for the personal and household use of our customers. Products are not designed or otherwise intended for use in commercial or other public establishments, such as hotels or community centers. Accordingly, and without limiting any other provision of these Terms, we will not be liable in connection with any such use. We also reserve the right to prohibit sale of Products to users who we believe are using Products for commercial purposes or reselling them.

(d) Assembly Instructions. Certain Products require assembly. You must follow the assembly instructions carefully and use professional installers when necessary. We are not responsible for any installation of Products.

(e) Payment. When you place an order for any Products via the Services, you agree (i) that Sundance Spas may charge the credit card, debit card, or other payment method you have chosen for your purchase verification, pre-authorization, and payment purposes for the total amount of your order (including any applicable taxes, shipping, handling, or other fees) ) directly or through a third-party payment processor; (ii) Sundance Spas may provide your payment information to third parties so we can complete the transaction related to your purchase and charge your payment method for the Products you have purchased (plus any applicable taxes and other charges); and (iii) to bear any additional charges that your bank or other financial service provider may levy on you. Completion of a payment transaction is contingent upon: (1) you providing complete personal, account, transaction and any other information needed, (2) authorization of the payment by your credit or debit card company or the company that is otherwise facilitating your payment for the Product(s), and (3) acceptance of your payment. We may cancel a payment or prevent you from initiating future payments for any reason, including, without limitation, the following: (u) if you attempt to use the Services in breach of any applicable law or regulation, including the card network rules or regulations; (w) if you use the Services in breach of these Terms; (x) if we suspect fraudulent, unlawful or improper activity regarding a payment; (y) if we detect, in our sole discretion, that your payments have excessive disputes, high reversal rates or present a relatively high risk of losses; or (z) failure to cooperate in an investigation or provide additional information when requested.

(f) Promotional Codes. Sundance Spas may, from time to time in its sole discretion, offer certain promotional codes for discounts. Promotional codes are non-transferable and are not redeemable for cash, credit, or toward previous purchases. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by Sundance Spas at any time in its sole discretion.

(g) Reservation of Rights. We reserve the right to not process or reject your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Sundance Spas deems appropriate in its sole discretion. We may also limit the order quantity, extend the delivery timeline for any reason after the order has been placed and accepted, and/or refuse to ship a Product to you for any reason. Sundance Spas also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order.

(h) Availability and Backorders. Quantities of some Products may be limited and stock cannot always be guaranteed. If a Product that you select for purchase is out of stock, it may be placed on backorder and we will ship it to you as soon as it is available.

(i) Prices, Taxes, Customs and Duties. Unless otherwise noted, all prices displayed via the Services are displayed in the local currency (e.g., U.S. dollars or Canadian dollars). Prices are subject to change at any time without notice. Any quote provided by a Sundance Spas customer service representative via email will be honored for 14 days from the date the quote was issued. We may occasionally make errors in the stated prices on the Services. If a Product’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation. The prices displayed do not include any shipping or handling charges or applicable taxes, which charges and taxes will be communicated to you at checkout before you place an order, and you are responsible for paying such charges and taxes to Sundance Spas. All prices are net of any sales, use, excise, value added and similar taxes imposed by any governmental authority regardless of how denominated. If you are located outside of the United States, you are responsible for remitting any applicable sales or other taxes to the relevant authorities upon delivery of the Product. You shall pay all such taxes or charges or provide us with a tax or levy exemption certificate acceptable to the applicable taxing or levying authority. You shall also pay all customs or duties charges levied by the destination country in connection with international shipments (if and as applicable). We have the right to charge you for any taxes that we believe we are required to pay or collect related to your purchase.

(j) Transfer of Title and Risk of Loss/Damage. For Products that are shipped via common carrier (e.g., FedEx), title to and the risk of loss/damage of such Products passes from us to you at the time we deliver the Products to the common carrier for shipment. For Products that are shipped via a freight carrier (e.g., hot tubs, etc.) title to and the risk of loss/damage of such Products passes from us to you at the time such Products leave our possession. By purchasing Products on this website for shipment, you are asking us to engage a common carrier or freight carrier to deliver your order. We reserve the right to choose any and all procedures, packaging, the common carrier or freight carrier of sold Products.

(k) Shipping. You may not change your shipping address after you place an order. We only deliver to the United States and Canada (as applicable) and may not be able to deliver to all locations therein. Certain orders may be eligible for free standard shipping. In such cases, this will be communicated to you before or during the checkout process. You acknowledge and agree that all shipping dates in any communications from us (including as stated in these Terms) are estimates and subject to change. We do not represent or warrant that we will be able to ship the Product by the estimated date. You understand and agree that currently we are not able to commit to a fixed shipping or delivery date and you will be notified of updates to the same in accordance with the notice provisions of these Terms. In the event that a delay arises for any reason, foreseen or unforeseen, and the estimated shipment and/or release dates for the Product are not met, we will not be liable for any losses or damages that may occur due to the delay or cancellation of the Product, and we will not be obligated, except as set forth in these Terms, to provide any discounts, refunds or credits due to any such delays or cancellations. You are responsible for keeping us informed regarding the correct delivery address for the Product. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments. You understand and agree that certain Products may be drop shipped to you directly from the manufacturer of the Product in question. If you want to check on your order status, click here: SundanceSundance SpasSpas.com/contactus.html.

(l) Return Policy. Most products that are eligible for expedited FedEx shipping at the time of purchase can be returned for a refund within 30 days from the date such Product is delivered to you, regardless of how the Product was shipped. Any Product that can only be sent via FedEx Ground or freight carrier at the time of purchase is not eligible for return. Products that are made-to-order will be marked as final sale and cannot be returned due to their custom nature. In addition, final sale and consumable Products are not eligible for return. To determine if a Product is eligible for a return, or to initiate a return for an eligible Product, contact customer service: sundancespas.com.com/contactus.html.

(m) Exchange Policy. We want to ensure that you receive the correct Product that fits your needs. You can exchange any Product that is eligible for return for another Product within 30 days from the date such Product is delivered to you. If the price for any replacement Product is greater than the price of the original Product purchased, you will be required to pay the difference in price along with any applicable taxes and fees. Similarly, if a replacement Product’s price is less than the price of the original Product you purchased, we will provide you with a refund for the price difference between the Products. If, after the exchange, you decide not to keep your replacement Product, you can return the replacement Product within 30 days from the date such Product is delivered to you for a refund minus a restocking fee of 20% of the purchase amount of the original Product (excluding taxes and other fees).

8. Consent to be Contacted.

To the extent required by applicable law, we ensure we make the proper disclosures and obtain consumer consent when collecting your contact information.

9. Intellectual Property

(a) Trademarks. You acknowledge and agree that all Sundance® Spas logos and marks, and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress, and any other proprietary materials depicted in connection with our Services are owned solely and exclusively by Sundance Spas, and may not be used commercially by you or any third party without Sundance Spas’s express prior written consent. Sundance Spas’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Sundance Spas.

(b) Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”), provided by you to us through the Services are non-confidential and shall become the sole property of Sundance Spas. Sundance Spas shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

(c) DMCA and Copyright Complaints. If you believe that your work has been reproduced or distributed in a way that constitutes copyright infringement or are aware of infringing material available through the Company Services, please notify us by emailing us at legal@sundancespas.com with the subject line “DMCA Takedown Request.” We will process each notice of alleged infringement that we receive and take appropriate action with respect to applicable intellectual property laws. If you believe that any material on the Services infringes upon any copyright which you own or control, you may send a written notification of such infringement to our designated agent as set forth below:

(i) To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication including the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

10. Mobile App; App Store.

(a) If you have elected to download our App, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the App on any mobile device that you own or control that such App is authorized to be operated on (as determined by us in our sole discretion) and is permitted by this Section 10. The App is licensed, not sold, to you for use only under the terms of this Terms of Use. Sundance Spas reserves all rights, title and interest not expressly granted to you. Nothing herein allows you to use the App on a device that you do not own or are not authorized to control.

(b) Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play® store or the Apple’s® App Store® (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of this Section 10 (App Store). You acknowledge that these Terms of Use are between you and us and not with the owner or operator of the App Store Sourced Application (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless or cellular network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:

(i) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.

(ii) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Sundance Spas and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Sundance Spas.

(iv) You and we acknowledge that, as between Sundance Spas and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

(v) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Sundance Spas and the App Store Owner, Sundance Spas, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.

(vi) You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of these Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms of Use, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

• You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

(c) Without limiting any other terms in these Terms of Use, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

11. Limited Warranty and Disclaimers.

(a) We reserve the right to change any and all content within the Services and any service offered through the Services at any time without notice.

(b) Any warranties applicable to our Products can be found under the Product Warranty section on our Customer Service Policy, available at sundancespas.com/contactus.html. Please read the applicable Product warranty carefully, as it provides you with important legal rights and is subject to limitations. You acknowledge and agree that any applicable Product warranty is a part of, and subject to, these Terms, in particular the Limitation of Liability, Governing Law, and Dispute Resolution provisions contained in the Terms. UNLESS OTHERWISE STATED ON OUR PRODUCT WARRANTY COVERAGE PAGE: (I) THE PRODUCTS ARE PROVIDED "AS AVAILABLE" AND "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND; AND (II) SUNDANCE SPAS DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL PRODUCT WARRANTIES, WHETHER EXPRESS, IMPLIED AND/OR STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THEY MAY NOT APPLY TO YOU. WARRANTIES IMPLIED BY LAW THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE MINIMUM LENGTH REQUIRED BY LAW.

(c) THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services. We reserve the right to correct errors (whether by changing information on the Services or by informing you of the error and giving you an opportunity to cancel your order) or to update Product information at any time without notice.

(d) Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services and/or Products. YOU AGREE THAT YOUR USE OF THE SERVICES AND PRODUCTS IS AT YOUR OWN RISK, and that we EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.

12. Limitation of Certain Damage Types.

EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL SUNDANCE SPAS OR ANY OF ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. Limitation of Liability Amount.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SERVICES OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $20. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR A SERVICE OR PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.

NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.

14. Disputes, Governing Law, Venue, and Jurisdiction.

By using the Services, you agree that these Terms of Use shall be governed by the laws of the State of California, without regard to its conflict of law provisions.

For any cause of action initiated against Sundance Spas relating to these Terms of Use, you and Sundance Spas agree to submit to the exclusive and personal jurisdiction of the courts located in California.

Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.

15. Arbitration Agreement & Dispute Resolution

(a) Please read this Arbitration Agreement carefully. It is part of your contract with Sundance Spas and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(b) Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Sundance Spas 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) you or Sundance Spas 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 before this or any prior agreement. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST SUNDANCE SPAS ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH SUNDANCE SPAS, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST SUNDANCE SPAS IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

(c) Arbitration Rules and Forum. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the State of California before three (3) arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Sundance Spas will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

(d) 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 you and Sundance Spas. The dispute will not be consolidated with any other matters or joined with any other cases 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 these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Sundance Spas.

(e) Waiver of Jury Trial. YOU AND SUNDANCE SPAS EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Sundance Spas are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Sundance Spas over whether to vacate or enforce an arbitration award, you and Sundance Spas waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.

(f) Waiver of Class or Consolidated Actions. 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, neither you nor Sundance Spas is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 14 (Disputes, Governing Law, Venue and Jurisdiction) above.

(g) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Sundance Spas can force the other to arbitrate. To opt out, you must notify Sundance Spas in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Sundance Spas username (if any), the email address you used to set up your Sundance Spas account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to:

Sundance Spas Inc
17872 Gillette Avenue, Suite 300
Irvine, CA 92614
Attn: Privacy Office

privacy@sundancespas.com

If you opt out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.

(h) Exclusive Venue. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Sundance Spas agree that all claims and disputes arising out of or relating to these Terms of Use will be litigated exclusively in the applicable state or federal courts located in the State of California.

16. Indemnity.

To the maximum extent permitted by law, you agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses, arising out of or in connection with your use of the Services or any violation of these Terms of Use.

PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.

17. Survival.

The following Sections survive the termination of these Terms of Use: 4 and 7 through 17.

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