Terms and Conditions of Use

Welcome to the website(s) (collectively, the “Site”) for Explore Industries USA, Inc. and its various affiliates, subsidiaries and brands (collectively, “Explore,” “we” or “us”).

The content on the Site is owned by Explore or its affiliated companies and by affiliates and third parties that post on the Site through a license from Explore, but for whom Explore assumes no direct responsibility. Please read these terms and conditions contained on the Site, as they, together with any additional terms to which you agree when using particular elements of the Site, constitute the entire agreement regarding the Site and set forth the legally binding terms governing your visit to the Site. These Terms and Conditions apply to all persons who visit the Site (“Visitors”), regardless of your level of participation.

By using the Site you agree that you have read, understand and accept the following terms and conditions (“Terms and Conditions”), and you affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions.

THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, OR REPRESENTATIVE ACTION. PLEASE READ THE SECTION TITLED “GOVERNING LAW; JURISDICTION; CLASS ACTION WAIVER AND ARBITRATION” BELOW TO LEARN MORE.

Restrictions

By using the Site, you agree that you will not use the Site for any purpose that is unlawful or in contravention of these Terms and Conditions. Explore and its affiliates reserve the right to change these Terms and Conditions from time to time without notifying you. If you object to any such changes, your sole recourse shall be to cease using the Site. Continued use of the Site following the effective date any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the Terms and Conditions of such changes. Explore may cease all or part of the Site at any time without notice and is not obligated to retain or return any post or comment. If you do not agree to any of these Terms and Conditions, please do not use the Site.

Notice and disclaimer regarding independent dealers

The Site may link to or refer to websites hosted by Explore on behalf of itself and certain of its independent dealers and franchisees (“dealers”) that resell and install Explore products. Such dealers may update the content on these dealer websites and their privacy policies and terms and conditions displayed on their websites will apply. Please note the following regarding these independent dealers:

  • Explore products are supplied in the United States and Canada primarily through a network of independently owned and operated dealers authorized to sell and install various products under a license from Explore or Explore Industries Canada, Inc., as applicable. Explore is the product manufacturer and Explore and its affiliates are completely separate from the independent sellers and installers who act as dealers. These dealers are not owners, employees or agents (in fact or law) of Explore or its affiliates, have no right or authority to bind Explore or its affiliates to any agreement, contract or undertaking, and are not authorized to make any claims regarding Explore products that are not contained in Explore literature regarding the products in its family of brands. Neither Explore nor any of its affiliates is responsible or liable in any way for the actions or omissions of these dealers or any related damage to persons, property or Explore products. Any statement in any advertisement, literature, brochure or website should not be interpreted or construed to expressly or impliedly create any relationship between Explore and any dealer that sells products manufactured by Explore contrary to this notice and disclaimer.
  • Before entering into a contract with a dealer of Explore products, retail purchasers are advised to undertake their own research and investigation regarding the dealer and to obtain independent legal and financial advice regarding any contract and payment plan proposed. Because each dealer is an independent business, each may have its own contract and payment structure for the sale and installation of products. Explore is not a party to the retail purchaser’s contract with the dealer, does not set or control dealer contracts or payment terms and has no liability in connection with the contractual or financial relationship between retail purchasers and dealers. We do, however, encourage all retail purchasers to consult State and local laws and resources regarding stage-based payment approaches typical in the industry, some of which may be required by law in the retail purchaser’s locale and/or may otherwise be advisable to promote transparency and ensure that payments align with key milestones. Specifically, many State consumer protection agencies or offices of the attorney general offer more information about a retail purchaser’s specific rights and any payment-related regulations that may apply in their area.
  • EXPLORE AND ITS AFFILIATES HEREBY DISCLAIM ANY AND ALL LIABILITY FOR ANY ACT OR OMISSION (WHETHER INTENTIONAL OR UNINTENTIONAL) OF ANY DEALER OR ANY OTHER PERSON OR ENTITY WHO SELLS, INSTALLS, REPAIRS OR SERVICES PRODUCTS MANUFACTURED BY EXPLORE, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DAMAGE TO ANY EXPLORE PRODUCT OR OTHER DAMAGES CAUSED BY SUCH DEALER OR OTHER PERSON OR ENTITY.
  • Explore, as the manufacturer, offers a separate manufacturer’s limited warranty to retail purchasers of specific products (the limited warranties for products in each Explore brand, collectively, the “Limited Warranty”). The Limited Warranty is separate and apart from any other or additional warranty or guarantee offered by any person or entity (including without limitation a dealer or franchisee) that sells, installs, repairs or services products manufactured by Explore. A copy of the Limited Warranty can be found in the warranty section of the Site.

These Terms and Conditions (other than the notices and disclaimers regarding dealers/franchisees herein) do not address or apply to a dealer or franchisee’s installation of Explore products or their sale of Explore products.

Trademark Notice

The Explore name, and all trademarks and logos displayed on the Site are owned or used under license by Explore. These trademarks include, but are not limited to, product brand names, slogans and logos and emblems. The unauthorized use of any trademark or logo displayed on the Site is strictly prohibited.

Information and illustrations

Explore provides the following Notice and Disclaimer to buyers in respect of the information and illustrations contained on any Explore website, brochures, information sheets and/or marketing material (hereinafter referred to as “Published Information”):

Measurements and dimensions of all Explore products (including but not limited to swimming pools, spas, water features, equipment, testing results, testing and any other reference contained in Published Information) may vary from what is contained on Published Information to actual measurements and/or dimensions of Explore products;

  • Colors and finishes of all Explore products (including but not limited to swimming pools, spas, water features, equipment and any other reference contained in Published Information) may vary from what is contained on Published Information to actual colors and finishes of Explore products. Colors and finishes displayed on this Site on your computer or device may appear different in person.
  • All information contained in articles, blogs, forums, customer testimonials, certificates of recommendation, dealer pages and any other Published Information may contain inaccuracies or typographical errors. Explore reserves the right to correct and change such information at any time.

Pool Builds

The ratio of raw materials used in pool builds may change from time to time based on supply. However, these changes do not affect the Limited Warranty.

Changes to the site

Explore reserves the right to change, modify, suspend, discontinue or permanently cancel the Site’s operation or portions thereof without any notice to you, including but not limited to product specifications or prices, at any time and from time to time without notice and without incurring any obligations. Your use of the Site after any changes are posted will be considered acceptance of such changes.

Privacy

For an explanation of Explore policies and practices regarding information that we may collect from you in connection with your use of the Site, you should review the Explore Privacy Policy, the terms of which are incorporated herein. By using the Site, you are agreeing to this Privacy Policy and you will be bound by the terms of such Privacy Policy.

Indemnity and hold harmless

By using the Site you agree that you will defend, indemnify and hold harmless Explore, any dealer or franchisee that sells products manufactured by Explore, and advertising and promotions agencies, together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorneys’ fees and costs) arising out of your use of the Site, or your breach or alleged breach of these Terms and Conditions. Explore reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and, in such case, you shall agree to cooperate with Explore’s defense of such claim.

Disclaimer

Explore may at any time revise these Terms and Conditions by updating this posting. You are bound by such revisions and should therefore visit this page to review the current Terms and Conditions from time to time.

This Site and all the information it contains is provided for information purposes only on an “as is” basis and could include technical, typographical or other errors. In certain areas, the information provided may represent an opinion or judgment.

Explore is not responsible for the content of any third-party website linked to the Site and is not directly or indirectly implying any approval, endorsement or affiliation with any linked website.

YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, EXPLORE’S OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SHAREHOLDERS, REPRESENTATIVES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXPLORE, ITS INFORMATION PROVIDERS AND THEIR AGENTS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT OF ANY SITES LINKED TO THE SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (IV) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD-PARTY, AND/OR (V) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. EXPLORE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY HYPERLINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND EXPLORE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NEITHER EXPLORE, INFORMATION PROVIDERS OR THEIR AGENTS ARE PROVIDING ANY LEGAL, TAX, MEDICAL, COUNSELING, ACCOUNTING, INVESTMENT, FINANCIAL OR ANY OTHER PROFESSIONAL SERVICES OR ADVICE.

Governing law; dispute resolution; arbitration

These Terms and Conditions are governed by the laws of the state of Tennessee, USA, without regard to its conflicts of law provisions. Any claim or controversy arising out of or related to these Terms and Conditions shall be resolved as set forth below.

Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms and Conditions (each a “Dispute” and collectively, the “Disputes“) brought by either you or us (individually, a “Party” and collectively, the “Parties“), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

Binding Arbitration

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA“) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules“), both of which are available at the American Arbitration Association (AAA) website. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Knoxville, Tennessee or, if Explore has relocated its principal place of business from Knoxville, Tennessee, then in the city where Explore’s principal place of business is located at the time the action is initiated. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

If you intend to seek arbitration you must first send a written notice (“Notice”), by first class or certified mail to Explore Industries USA, Inc., ATTN: General Counsel, 2901 Leisure Island Way, Knoxville, TN 37914. If it intends to seek arbitration, Explore will send a Notice to the current billing address you have provided us or the address in your account The Notice must describe the nature and basis of the claim and the specific relief sought. If the Parties cannot reach an agreement within 30 days from the receipt of the Notice, either Party may initiate arbitration proceedings.

A form to initiate arbitration proceedings is available on the AAA site at www.adr.org. In addition to filing this form with the AAA, the Party initiating the arbitration must mail a copy of the completed form to the opposing Party. You may send such copy to Explore at Explore Industries USA, Inc., ATTN: General Counsel, 2901 Leisure Island Way, Knoxville, TN 37914, and Explore will send such copy to the current billing address you have provided us or the address in your account or to your attorney, if you have retained one.

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Knoxville, TN, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. In no event shall any Dispute brought by either Party related in any way to the Site or Services be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court. Each Party shall bear its own attorneys’ fees and costs incurred in connection with any Dispute.

Restrictions

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.

California Users And Residents

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254. . You may also contact us by writing to Explore Industries USA, Inc., ATTN: General Counsel, 2901 Leisure Island Way, Knoxville, TN 37914, or by calling us at (865) 219-2880.

Miscellaneous

These Terms and Conditions, together with any additional terms to which you agree when using particular elements of the Site, constitute the entire agreement regarding the Site and any Services, and supersede all prior or contemporaneous communications, whether electronic, oral or written between you and us with respect to the Site or the Services provided on the Site. If a court determines that any term or condition in these Terms and Conditions is illegal or unenforceable, then such term will be eliminated and the remaining terms and conditions will remain in force and effect. Explore’s failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect.