Terms of Use

Last updated: August 02, 2019

Welcome to the Poolside website (“Site”). Poolside is a virtual marketplace that provides a service that helps match restaurant service providers (“Service Providers”) with restaurants that looking for service providers. We help Service Providers”) procure the amount of work they desire by providing a virtual marketplace for listings for service opportunities with the restaurant industry (“Customers”) that fit the Service Providers’ preferences and fill the gaps in their schedules (each a “Listing”). 

NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, CLASS ACTION WAIVER AND A TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY

The following terms and conditions (“Terms”), together with our Privacy Policy and Site Rules (collectively, our “Policies”) which we may update from time to time, govern your use of the Site, and these Terms are a legal contract between you and the corporate entity that operates Poolside, Poolside, Inc., a technology company. 

Please read our Policies carefully. They cover important information about Poolside and the services we provide. The Policies include information about future changes to the Policies, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.

By accessing or using the Site, you signify your assent to these Terms and agree to comply with all applicable laws and regulations, copyright laws and other laws regarding intellectual property. If you are using this Site on behalf of an entity, you represent and warrant to Poolside that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to Poolside if you or that entity violate these Terms.

If you do not agree to these Terms or the Policies, do not access or otherwise use our Site or any of the materials contained on this Site. By browsing and/or using this Site, you affirm that you have read and agree to the Policies, including these Terms.

1. Changes to Terms

We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Site; however, material changes to these Terms will be effective upon the earlier of (i) your acceptance of the revised terms, (ii) your first use of the Site with actual notice of such change, or (iii) 30 days from posting of such change. Your use of any Site following any such change constitutes your agreement to be bound by the modified Terms. These Terms will identify the date of last update. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.

 

2. Privacy

Your privacy is important to us. Our Privacy Policy discloses how Poolside collects and uses information and personal information, so please review the Privacy Policy carefully. Any personal information that you submit to Poolside will be processed in accordance with these Terms and the Privacy Policy. By browsing and/or using this Site, you affirm that you have read and agree to the Privacy Policy and its terms. 

 

3. Use of Site

Whether you register or not, you are not permitted to use Poolside’s Site or its content other than for your personal use if you are a Service Provider, for your internal business purposes if you are a Customer or if you are not a Service Provider or Customer, for non-commercial purposes. Poolside reserves the right to take such action as it considers necessary, including issuing legal proceedings without further notice, in relation to any unauthorized use of the Site. We reserve the right at all times (but will not have any obligation) to terminate users, and reclaim usernames or URLs, for any reason. By agreeing to these Terms, you acknowledge that you have reviewed the Site Rules, with which you agree to comply at all times. Poolside reserves the right at all times to terminate any user for non-compliance with the Site Rules, as determined at Poolside’s sole discretion.

4. Use of Site by Minors

The Site is not intended for use by anyone under the age of 16. To use the Site, you agree that you must be the minimum age or older, which is 16 year of age. However, if local laws, including labor and employment laws, require that you must be older in order for Poolside to lawfully provide the services in the Site to you, then that older age shall apply as the applicable minimum age. If you are under the age of 18 or the age of majority in your jurisdiction, you must only use the Site under the supervision and with the approval of your parent or legal guardian. We hereby notify you that third-party parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist a parent or legal guardian in limiting access to material that is harmful to minors. 

 

5. Intellectual Property

Certain information, content, and services may be made available on and through our Site, as well as in our communications to you (together, the “Materials”). You understand and acknowledge that Poolside (or its affiliates and/or licensors), owns all right, title and interest to the Site and the Materials, and all proprietary rights associated therewith. Poolside reserves all rights not specifically granted herein. Poolside grants you permission to temporarily download one copy of the Materials from this Site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:

  1. modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, or other indicia of ownership in the Materials or within the Site, other than your User Content; 

  2. modify or copy the Materials or the Site; 

  3. use the Materials for any commercial purpose, or for any public display (commercial or non-commercial); and/or

  4. attempt to decompile or reverse engineer any software contained on the Site. 

Any derivative use of the Site or its materials, and any use of data mining, robots, or similar data gathering, and extraction tools is strictly prohibited. 

 

6. User Content

Any materials that a user submits to Poolside or posts, displays, or otherwise makes available on or through the Site (where it is stated that such materials may be posted on the Site), including without limitation information, images, Poolside Profiles (as defined below), Listings and text, are referred to herein as “User Content”. User Content enables Poolside to better deliver its services, facilitate communication, and to let users know of available service provider opportunities. User Content is entered into the Site by third-party contributors, including by Service Providers, Customers and other third parties. In some cases, those third-party contributors may use anonymous screen names. In addition, User Content may be inaccurate, incomplete, misleading or deceptive. Poolside does not endorse and is not responsible for any User Content, including any opinion, advice, information, or statement contained therein. Some content contained on the Site may appear to be content produced by Poolside, but is in fact User Content. 

With respect to User Content, you acknowledge and agree that: 

i. by accessing the Site, you may see User Content that you find harmful, offensive, threatening, indecent or objectionable, including, but not limited to, explicit language and other potentially offensive material, and Poolside shall have no liability with respect to such User Content; 

ii. you own the User Content that you submit, post, display, or otherwise make available on or through the Site, or that you otherwise have the right to grant the license set forth in this section. If you wish to request to revoke a license granted by you in this section for any such User Content, please contact us at team@poolside.co

iii. such User Content, and its submission, posting, display or availability on or through the Site does not violate applicable law or the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person or entity;

 

iv. such submission, posting, display or availability on or through the Site does not result in any breach of contract between you and any third party; 

 

v. you agree to pay for all royalties, fees, damages, and any other monies owed to any person or entity by reason of such User Content, and agree to defend, indemnify and hold harmless Poolside and its affiliates from any claims resulting from any such User Content;

vi. when posting User Content, you will comply at all times with the Site Rules;

 

vii. although Poolside has no obligation to do so, Poolside may monitor User Content, and reserves the right to delete any User Content or portion thereof that, in Poolside’s sole discretion, violates the above rules and/or the Site Rules, including any User Content that is unrelated to the specific portion of the Site on which it is posted, or that is an advertisement, recruiting or other commercial message, or that Poolside deems in its sole discretion to be inappropriate; and

viii. Poolside reserves the right to disclose all User Content and other relevant information (i) to any third party in connection with operating the Site (ii) to protect itself, its affiliates, its partners and its visitors and (iii) to comply with legal obligations or governmental requests. This means, for example, that Poolside may honor subpoenas, search warrants, law enforcement or court-mandated requests to reveal a user’s electronic address and identity, or other information properly requested by law enforcement.

If you believe that any User Content violates these Terms or our policies, please send us an email at team@poolside.co immediately so that we may have the opportunity to consider its removal. For clarity, Poolside does not have any obligation to remove any User Content, and the interpretation of whether any User Content violates any of our Policies will always remain within the sole discretion of Poolside.

 

7. License to Use Content

To the extent permitted by law, if you post User Content to the Site, including but not limited to photographs or information you submit for a service provider solicitation hosted on Poolside, you grant Poolside a nonexclusive, worldwide, perpetual, (revocable only as described below), fully paid, royalty-free, sublicensable right and license to make, use, sublicense, reproduce, distribute, perform, display, prepare derivative works from and otherwise exploit all such content for the purpose of publishing material on the Site, maintaining the Site and promoting Poolside without restriction. Furthermore, you grant to Poolside, its affiliates, and sublicensees the license to use your name, user name, and/or trademarks and logos in connection with any such User Content or Poolside marketing materials, or actions by Poolside to promote or publicize such User Content (e.g., Listings) including the use of keywords in third-party internet search engines.

 

8. Feedback

If you provide us with verbal feedback and/or written feedback related to your use of the Site, including, but not limited to, a report of any errors which you may discover in the Site(s) and related services or suggestions for improvements or changes to the Site(s) and/or the related services, you hereby grant use a perpetual, irrevocable right to use such feedback to develop and improve the Site(s) and/or any related services.

 

9. Discriminatory Listings

Simply put, discrimination is illegal, and that includes discriminating against service provider applicants. While we have no obligation to do so, Poolside reserves the right to remove any Listing that directly or indirectly discriminates against Service Providers (as determined by Poolside at its sole discretion). If a Listing specifically states or strongly implies that only Service Providers matching a certain criterion are wanted, thereby excluding others because of, for example, their gender, race, age or disability, this is direct discrimination. If a Listing implicitly excludes certain classes of Service Providers by making it impossible for them to qualify for the job requirements, this is indirect discrimination. Customer understand and agree that it is your responsibility to refrain from posting any Listing that directly or indirectly discriminates against Service Providers or otherwise violate applicable laws.

 

10. Poolside Services

Poolside is a virtual marketplace that includes offering a postings for Service Providers and, in some cases, a matching service. In this capacity, it may make available certain Listings and other related content, including links to third-party websites (such as listings and other content), listings posted directly by restaurants, or listings drawn from third-party websites, through Poolside’s search results or otherwise through the Site. Poolside’s role is exclusively to enable Service Providers to view Listings and apply for jobs with Customers or other restaurants over whom Poolside has not control or with whom Poolside is not affiliated.

 

a. Service Providers

For Service Providers, any information about you that you generate via the Poolside tools (“Poolside Profile”) or other information, including personal data, that you submit through the Site is subject to these Terms as well as Poolside’s Privacy Policy and Site Rules. Without limiting the foregoing, however, please note that by creating a Poolside Profile through the Site, you are requesting and authorizing Poolside to make available your Poolside Profile to any Customer that Poolside believes may have an interest in your Poolside Profile. By creating a Poolside Profile, you understand that Poolside may contact you to share Listings with you that match the contents of your Poolside Profile. In addition, by using Poolside, you acknowledge and agree that:

 

i. Poolside does not guarantee that any Customer will receive, be notified about, access, read or respond to your Poolside Profile or application material, or that there will be no mistakes in the transmission or storage of the data if it is transmitted to a Customer; 

ii. the content of Listings is created or provided by third parties who are or act on behalf of potential Customers over whom Poolside exercises no control. By using the Site, you acknowledge and understand that Poolside has no control over any Listings (including the content thereof), regardless of the source of such Listings. Except for certain sponsored, featured or paid placements that may be on the Site, the Listings contained on, or linked from, the Site are indexed or posted in an automated manner. Poolside has no obligation to screen any Listing, or to include any Listing in its search results or other listings, and may exclude or remove any Listing from the Site for any or no reason, at its sole discretion. Poolside assumes no responsibility, and disclaims all liability, for the content, accuracy, completeness, legality, or availability of any Listing submitted by any Customer or user, including the identity of such Customer or other user; 

iii. Poolside does not guarantee the identity of an Employer or any individuals working for any Employers, and Poolside does not guarantee the validity of a job offer. Job Seekers are responsible for verifying the validity of a job offer and identity of an Employer before taking an adverse action regarding their current employment. Job Seekers are solely responsible for verifying the accuracy of any Employer or job offer;

 

iv. Poolside does not provide any input regarding the job qualification criteria of Employers; and

 

v. Poolside may automatically send you recommended jobs via the email address or phone number you use to create a Poolside account or apply for a job. Poolside may determine what these recommended jobs are on the basis of a variety of factors, including but not limited to, any information you input on the Site about yourself, searches you run on the Site, jobs you click on, jobs you apply to, or the materials you provide in a job application to an Employer through Poolside. See section 9(c)(ii) below.

 

b. Customers

If you are an Employer, when you browse the Site, create a Poolside account or post a Listing on the Site, you agree that these Terms and all of Poolside’s policies, including the Privacy Policy and Site Rules, apply to you and to the Job Seekers using the Site or indicating an interest in your Listings. In addition, by using Poolside and posting a Listing or any other information to the Site (if applicable), you acknowledge and agree that:

i. in the event you provide incorrect contact information, it shall be your responsibility to correct, appropriately respond, or take any steps necessary to protect the privacy of such Job Seekers, and you indemnify Poolside for any damages resulting therefrom;

 

ii. Poolside does not verify the identity of any Job Seekers who apply to Listings, and provides no guarantee as to the Job Seeker’s qualifications or interest in your Listing. Poolside assumes no responsibility for the communications between you and the Job Seeker, which communications are yours’ and the Job Seekers’ sole responsibility. When you respond to or contact a Job Seeker who has created a Poolside Profile you are providing information to Poolside and requesting and authorizing us to make available such information to the applicable Job Seeker; Do we want to add something here to the effect that we are not doing background checks?

 

iii. you are responsible for the contents of any Listings that you post, and any messages that you send, including any questions for Job Seekers; 

 

iv. Poolside may reject or remove any Listing or any other information you post for any or no reason. You shall indemnify, defend and hold harmless Poolside, its agents, affiliates, and licensors from any third-party claim or liability (including without limitation reasonable legal fees) arising out of any posting on the Site created by you, or any Listing or information posted by you, or any message sent by you (including any questions for Job Seekers contained in any of the foregoing); and

 

v. to the extent permitted by law, if you have an outstanding invoice or account balance for any Poolside service, Poolside reserves the right to suspend or terminate your use of that Poolside product as well as any other Poolside service.

 

c. All Users (Including Service Providers and Customers) 

When you view the Site, access the Site, or when you register, submit information, create a Poolside Profile, provide a Listing or otherwise interact with or post to the Site, either as a Service Provider or a Customer (collectively, “Use”), you will also access a variety of Materials and User Content on the Site and may engage with other users, Job Seekers and/or Employers. With respect to your Use of the Site, you acknowledge and agree as follows:

i. Poolside acts as a listing service and does not act as a job placement agency or staffing firm. Poolside is in no way responsible or liable for the process or outcome relating to any transaction between a Service Provider and a Customer, Listing or any employment opportunity, whether potential or finalized;

 

ii. when you view, send, store or receive content (including Listings, Poolside Profiles, and messages) through the Site, Poolside may store and log such the details of your activity for data analysis, quality control, to offer you suggestions or to refine the Site or any other Poolside product or service (including to improve the Site and our services);

 

iii. Poolside assumes no responsibility, and disclaims all liability, for the content, accuracy, completeness, legality, or availability of any Listing, Service Provider screening questions, Poolside Profiles that you post, send, review or receive through the Site, and any and all other information submitted by you on or via the Site. If you see any inaccuracy in content that you post, it is your responsibility to correct such information or to contact Poolside to do so; 

 

iv. Poolside may use submitted materials (including Poolside Profiles) and your activity on Poolside to determine you are a match for a potential Customer. Regardless of whether you are a Service Provider or a Customer, you agree and consent that Poolside may differentiate those matching Poolside Profiles and candidate screening questions from those that do not match, and present them to Customers as matches or not matches. Poolside may also use such information in order to improve the Site or any other Poolside product or service (including by displaying or otherwise making available potentially relevant Listings and Poolside Profiles to Service Providers and Customers); 

 

v. Poolside may provide certain types of career-related information on its Site, including information regarding job responsibilities, breaks, wages, salaries, and salary estimations. All information contained in any Poolside such guide is for informational purposes only, and is in no way to be construed as professional career counseling or staffing services; and

 

vi. your use of the Site and any Materials, as well as Communications (defined below) is at your own risk. 

 

 

11. External Sites

The Site may contain links to other sites on the Internet which are owned and/or operated by third-party vendors and other third parties, such as background check service providers or social media websites (“External Sites”). If you choose to use such third party sites or services, you enter into an agreement with such third party alone at your own risk. Poolside disclaims any responsibility for any dispute arising out of an External Site. You acknowledge that Poolside is not responsible or liable for External Sites or the actions (or inaction) of the third party that own or operate the External Sites, or for the availability of, or the materials located on or through, any External Sites. 

12. Communications via Text and Email

Portions of the Site, including areas that may permit you to set up an account with Poolside, may require you to register or provide an email address. When you sign up, you may also be asked for your permission to receive text messages from Poolside (“Communications”). With respect to Communications, if you consent as explained above and change your mind, you will always have the opportunity to opt out of such Communications. 

By consenting to Communications with Poolside, you acknowledge and agree that:

 

i. Communications are subject to the Privacy Policy and Site Rules;

 

ii. you will provide true, accurate, current and complete information about yourself as prompted by our registration form;


iii. ​such Communications may not be secure, and as such Poolside may not guarantee the security of any Communications or information contained therein, and as such you accept the risk that any such Communications may be intercepted by an unauthorized person in transit or third party;

 

iv. you agree to any standard message and data rates that may apply with respect to the Communications, and that you are solely responsible for any costs associated with said Communications; 

 

v. you are responsible for the confidentiality and use of your username and password, and not transfer or resell your use of or access to the Site to any third party. Please note that any individuals with whom you have shared your username and password and who are able to answer verification questions about your Poolside account may receive access to information regarding your Poolside account. If you are an Employer, your account is for business use and not for personal use.  Poolside is not responsible and disclaims all liability if your email is used improperly or falsely by a third party. By registering for a Poolside account, you agree to receive mandatory email updates regarding anomalous activity to your Poolside account; and

 

vi. Poolside is not responsible or liable for the security, safety, proper receipt or transmission, or costs associated with any Communications.

 

 

13. Disclaimer of Warranties

POOLSIDE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE CONTENT, ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL DISPLAYED IN OR LINKED FROM THE POOLSIDE SITE OR OTHERWISE MADE AVAILABLE ON THE SITE BY POOLSIDE OR THIRD PARTIES (INCLUDING WITHOUT LIMITATION LISTINGS AND OTHER USER CONTENT), REGARDLESS OF WHETHER PAID FOR OR USED FOR FREE. POOLSIDE FURTHER DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION, USER CONTENT OR MATERIAL ON THE SITE (OR ON OTHER SITES OR SERVICES ON THE INTERNET ACCESSED THROUGH THE SITE). UNDER NO CIRCUMSTANCES SHALL POOLSIDE BE LIABLE TO YOU OR ANY THIRD PARTY ON ACCOUNT OF YOUR USE (OR MISUSE) OF OR RELIANCE ON THE SITE. 

POOLSIDE FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY TECHNICAL MALFUNCTION OF THE SITE, INCLUDING BUT NOT LIMITED TO FAILURE OF ANY COMPUTER SYSTEMS, SERVERS OR PROVIDERS, SOFTWARE, EMAIL OR MESSAGE DELIVERY (INCLUDING ATTACHMENTS), ACCOUNT LOGIN, OR ANY OTHER SERVICES PROVIDED BY POOLSIDE AS A RESULT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ANY THIRD PARTY WEBSITE, INCLUDING INJURY OR DAMAGE TO YOUR OR TO ANY OTHER PERSON’S COMPUTER, MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING ANY CONTENT IN CONNECTION WITH THE SITE OR SERVICES. UNDER NO CIRCUMSTANCES WILL POOLSIDE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ANY CONTENT OR PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SITE, THE POOLSIDE SERVICES OR USER CONTENT, LINKS OR SOFTWARE POSTED ON OR THROUGH THE SITE OR TRANSMITTED TO USERS OR ANY INTERACTIONS BETWEEN USERS OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE.

THE SITE, AND ALL MATERIALS, INFORMATION, POOLSIDE PROFILES, LISTINGS, OTHER USER CONTENT, OR ANY OTHER PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED. POOLSIDE AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

 

14. Limitation of Liability

 

a. No Consequential Damages.

 

UNDER NO CIRCUMSTANCES SHALL POOLSIDE OR ITS AFFILIATES, OR ITS OR THEIR THIRD-PARTY LICENSORS, BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF OR RELIANCE ON THE SITE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHERWISE, EVEN IF POOLSIDE OR ITS AFFILIATES, OR ITS OR THEIR THIRD-PARTY LICENSORS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SITE, FROM RELIANCE OR DAMAGE CAUSED BY INFORMATION POSTED ON THE SITE, FROM INABILITY TO USE THE SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS MADE AVAILABLE ON THE SITE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SITE OR ANY INFORMATION THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND TO THE FULLEST EXTENT PERMITTED BY LAW. 

 

b. Cap on Liability.

 

TO THE EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF POOLSIDE AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF (I) THE AMOUNT YOU PAID POOLSIDE TO USE THE SITE, OR (II) FIVE HUNDRED DOLLARS (US$ 500.00).

 

c. Basis of Bargain.

 

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

14. Force Majeure

Poolside, its affiliates, or its or their third-party licensors, shall, under no circumstance whatsoever, be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its or their reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

 

15. Governing Law / Jurisdiction

 

These Policies, as well as any contractual or non-contractual disputes, claims or controversies arising out of or in connection with the Policies, your Use of the Site or Services, or your relationship with Poolside (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) (collectively “Disputes”), are subject to the laws of the state of Illinois, United States of America, without regard to choice or conflicts of law principles. Further, you and Poolside agree to the jurisdiction of the State and Federal Courts located in Cook County, Illinois to resolve any Dispute of any type that relates to or arises in connection with Policies and is not subject to mandatory arbitration under section 16(b) below.

 

16. Dispute Resolution: Arbitration Agreement

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

a. Dispute Resolution and Arbitration

ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED. Any dispute under these Terms shall be submitted to binding arbitration under the Rules of the American Arbitration Association (“AAA”). Any disputes that involve a claim of less than $10,000 USD must be resolved exclusively through binding non-appearance-based arbitration. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The arbitration proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (b) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise); and (c) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. Disputes that involve a claim of more than $10,000 USD must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Poolside can also help put you in touch with the AAA. For disputes over $10,000 USD, there shall be one (1) arbitrator agreed upon by the parties, and if the parties cannot agree within ten (10) days, then AAA shall make the appointment.  The arbitrator shall be a trial attorney having not less than fifteen (15) years’ experience in intellectual property matters and sales and licensing of technology.  In all cases, the arbitration shall be conducted in the English language. The place of arbitration shall be Chicago, Illinois.  In addition to the authority conferred on the arbitrator by the AAA Rules, the arbitrator shall order the production of relevant documents requested by either party.  At the request of any party, the arbitrator shall order the deposition of any witness who submits a witness statement.  The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any party to be dispositive of any claim or counter-claim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue.  The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.  The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, its costs and expenses including attorneys’ fees.  The arbitral award shall be final and binding upon the parties hereto.  Any monetary award shall be made payable in United States Dollars.  Judgment on the award may be entered in any court having jurisdiction thereof.  The parties hereby waive all objection which it may have at any time to the laying of venue of any proceedings brought in such courts, waives any claim that such proceedings have been brought in an inconvenient forum and further waives the right to object with respect to such proceedings that any such court does not have jurisdiction over such party.  Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party.  The application by either party to a judicial authority for such measures shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitrator.

 

b. Notice; Process

A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Poolside’s address for Notice is: 222 W Merchandise Mart Plaza, Suite 575, Chicago, IL 60654. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Poolside may commence an arbitration proceeding, as set forth above. During the arbitration, the amount of any settlement offer made by you or Poolside shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

 

c. Enforceability

If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in section 15 shall govern any claim in court arising out of or related to the Policies. 

17. Information or Complaints

If you have a question or complaint regarding the Site, please contact us at team@poolside.co

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, CA 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Site.

 

 

18. Miscellaneous

Entire Agreement.  These Policies constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms will be effective only if in writing and signed by Poolside. 

Severability.  If any provision of these Policies is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Policies, which shall remain in full force and effect. You agree that the Policies may not be altered, amended, modified or overridden, except by a document signed by an authorized representative of each party. For the avoidance of doubt, email or phone communication between you and any Poolside employees shall not constitute an amendment or alteration of these Policies.

Notices.  Any notices to Poolside must be sent to the Poolside via certified first class or air mail or overnight courier, are deemed given upon receipt. Notice to you may be delivered by sending email to the email address specified in your account, or by posting a message to your account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted.

Poolside, Inc.

222 W Merchandise Mart Plaza, Suite 575 

Chicago, Illinois 60654

United States of America

team@poolside.co

Assignment.  You may not assign or delegate any of your rights or obligations hereunder without Poolside’s prior written consent and any such attempt is void. Poolside may freely assign or delegate its rights and obligations hereunder without notice to you. Additionally, Poolside may assign any agreement between you and Poolside to any related Poolside entity by informing you of such assignment. Poolside and you are not legal partners or agents, but are independent contractors.

19. Termination

If you violate any provision of these Terms or Policies, your permission from us to use the Site will terminate automatically. In addition, we may in our sole discretion terminate your account or suspend or terminate your access to the Site at any time, with or without notice for any reason. We will have no liability whatsoever on account of any suspension or termination of your access to or use of the Site. If you are under 18, your parent/guardian may request the termination of your account by contacting customer service at team@poolside.co.

 

Poolside, Inc.

222 W Merchandise Mart Plaza, Suite 575 

Chicago, Illinois 60654

United States of America

 

CONTACT US
team@poolside.co
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