BESTWAY (USA), INC.
TERMS OF SERVICE
Last Modified: May 8, 2023
THESE TERMS OF SERVICE (“AGREEMENT”) CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MAY APPLY TO YOU. PLEASE READ IT CAREFULLY.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY USING THE SITE, PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THE SITE OR CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU MAY NOT USE THE SITE OR ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THE SITE IF YOU (A) DO NOT AGREE TO THIS AGREEMENT, (B) ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BESTWAY (USA) INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE SITE, ANY OF THE SITE’S CONTENT, OR BESTWAY (USA) INC.’S PRODUCTS OR SERVICES BY APPLICABLE LAW.
1. Accessing the Site and Account Security.
(a) We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users. You are responsible for both making all arrangements necessary for you to have access to the Site and ensuring that all persons who access the Site through your internet connection are aware of this Agreement and comply with it.
(c) If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
(d) We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
2. Intellectual Property Rights.
(a) The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Bestway (USA) Inc., its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
(b) This Agreement permits you to use the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Site, except as follows: your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials; you may store files that are automatically cached by your web browser for display enhancement purposes; if we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications; and if we provide social media features with certain content, you may take such actions as are enabled by such features.
(c) You must not modify copies of any materials from the Site; use any illustrations, photographs, video or audio sequences, or any graphics separately form the accompanying text; or delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site.
(d) You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of this Agreement, your right to use the Site will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by us. Any use of the Site not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and other laws.
(e) The Bestway (USA) Inc. name, the term Bestway, the Bestway logos and taglines and all related names, logos, product and service names, designs, and slogans are trademarks of Bestway (USA) Inc. or its affiliates or licensors. You must not use such marks without the prior written permission of Bestway (USA) Inc. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners.
3. Prohibited Uses.
(a) You may use the Site only for lawful purposes and in accordance with this Agreement. You agree not to use the Site: in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out below; to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; to impersonate or attempt to impersonate Bestway (USA) Inc., a Bestway (USA) Inc. employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing); or to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Bestway (USA) Inc. or users of the Site, or expose them to liability.
(b) Additionally, you agree not to: use the Site in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site; use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site; use any manual process to monitor or copy any of the material on the Site, or for any other purpose not expressly authorized in this Agreement, without our prior written consent; use any device, software, or routine that interferes with the proper working of the Site; introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site; attack the Site via a denial-of-service attack or a distributed denial-of-service attack; or otherwise attempt to interfere with the proper working of the Site.
4. User Contributions. The Site may contain message boards, forums, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Site. All User Contributions must comply with the Content Standards set out below. Any User Contribution you post to the Site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. You represent and warrant that you own or control all rights in and to the User Contributions and have the right to grant the license granted above and that all of your User Contributions do and will comply with this Agreement. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Bestway (USA) Inc., have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.
5. Monitoring and Enforcement; Termination.
(a) We have the right to: remove or refuse to post any User Contributions for any or no reason in our sole discretion; take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates this Agreement, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for Bestway (USA) Inc.; disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; and terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation of this Agreement.
(b) Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS BESTWAY (USA) INC. AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
(c) We do not undertake to review all material before it is posted on the Site and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
7. Reliance on Information Posted. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents. The Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Bestway (USA) Inc., are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Bestway (USA) Inc. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
8. Changes to the Site. We may update the content on the Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and we are under no obligation to update such material.
10. Linking to the Site and Social Media Features.
(a) You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
(b) The Site may provide certain social media features that enable you to link from your own or certain third-party websites to certain content on the Site; send emails or other communications with certain content, or links to certain content, on the Site; and/or cause limited portions of content on the Site to be displayed or appear to be displayed on your own or certain third-party websites. You may use these features solely as they are provided by us, solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not: establish a link from any website that is not owned by you; cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking; link to any part of the Site other than the homepage; or otherwise take any action with respect to the materials on the Site that is inconsistent with any other provision of this Agreement.
(c) The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out above. You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
11. Links from the Site. If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
12. Geographic Restrictions. The owner of the Site is based in the State of Arizona in the United States. We provide the Site for use only by persons located in the United States. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
13. Disclaimer of Warranties.
(a) You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
(b) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BESTWAY (USA) INC. NOR ANY PERSON ASSOCIATED WITH BESTWAY (USA) INC. MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER BESTWAY (USA) INC. NOR ANYONE ASSOCIATED WITH BESTWAY (USA) INC. REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS IN THE SITE WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
14. Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL BESTWAY (USA) INC., ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE OR ANY WEBSITES LINKED TO IT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES
1. Applicability; Order Acceptance and Cancellation.
(a) These Terms and Conditions of Sale for Products and Services, including, without limitation, the return, refund and limited warranty provisions below, apply to the purchase and sale of products and services through the Site.
(b) You agree that your order is an offer to buy, under this Agreement, all Products and Services listed in your order. When you place an order, you expressly authorize us (or our third-party payment processors) to charge you for the purchase. All orders must be accepted by us or we will not be obligated to sell the Products or Services to you. We may choose not to accept orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the Products and Services you have ordered. Acceptance of your order and the formation of the contract of sale with respect to Products and Services between Bestway (USA) Inc. and you will not take place unless and until you have received your order confirmation email.
2. Shipment; Delivery; Title and Risk of Loss. We will arrange for shipment of the Products to you at the address you specify in the ordering process. Unless otherwise stated during the ordering process, we will charge you for all shipping and handling charges for Product shipments. Title and risk of loss pass to you upon our transfer of the Products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipment.
3. Return Policy. We will gladly accept the return or exchange of any item purchased directly from our website (www.bestwayusa.com) or purchased over the phone with one of our Consumer Service Agents within 30 days from the date of purchase if the following conditions are being met. For directions on completing a return, please click here.
● The item(s) must be received at our warehouse within 30 days from the day purchased (minus any holidays).
○ For example, if you purchased an item or items on March 1st your return must be back to us by March 31st at the address below.
● The item(s) must be received in original packaging, unopened and in resalable condition.
● The cost of shipping the item(s) back to us will be your sole responsibility and is non-refundable.
● A credit to the original credit card used for purchase will be issued upon receipt if all conditions above have been met.
Bestway (USA), Inc.
Attn: Returns Department
3435 S McQueen Road
Chandler, AZ 85286
For any questions, please call Bestway (USA), Inc. Customer Service at (855)-401-2000
If you received a defective or incorrect item, please contact customer service using the phone number above prior to starting your return so we can better assist you. Please notify us within 15 days from the date the item(s) were received.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF WARRANTY OR DEFECTIVE OR INCORRECT ITEMS. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT OR SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
MISCELLANEOUS PROVISIONS FOR ALL BESTWAY PRODUCTS AND SERVICES
1. Prices and Payment Terms.
(a) All prices, discounts, and promotions with respect to the Products and Services, (collectively, the “Bestway Products and Services”) are subject to change without notice. The price charged for Bestway Products and Services will be the price in effect at the time the order is placed. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes. All such taxes will be added to your total and may be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, but we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b) We may offer from time to time sweepstakes and promotions with respect to Bestway Products and Services that may affect pricing and that are governed by terms and conditions separate from this Agreement. If there is a conflict between the terms for a sweepstakes or promotion and this Agreement, the applicable sweepstakes and/or promotion terms will govern.
(c) Terms of payment are within our sole discretion, and unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, Mastercard, American Express and certain other credit card payments for all purchases. You represent and warrant that: (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
2. Intellectual Property Use and Ownership; Feedback. You acknowledge and agree that, as between you and Bestway (USA) Inc., Bestway (USA) Inc. is and will remain the sole and exclusive owner of all intellectual property rights in and to each Bestway Product and Service made available on the Site or otherwise and any related specifications, instructions, documentation, and other materials, including but not limited to, all related copyrights, patents, trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the Bestway Products and Services made available through the Site or otherwise, or of any intellectual property rights relating to those Bestway Products and Services. We always welcome feedback, comments and suggestions regarding the Bestway Products and Services (“Feedback”). You grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid and royalty-free license, with the right to sublicense, under all applicable intellectual property rights that you own or control, to use, copy, modify, create derivative works based upon and otherwise exploit your Feedback for any purpose.
3. Not For Resale Or Export. You represent and warrant that you are buying and/or licensing Bestway Products and Services for your own personal or household use only, and not for resale or export. Bestway Products and Services may be controlled for export purposes by export regulations, including but not limited to, the Export Control Reform Act of 2018 (ECRA) (Title XVII, Subtitle B of Pub. L. No. 115-232), the Export Administration Regulations (15 C.F.R. 768-799) for which ECRA is permanent statutory authority, the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations. You shall not, directly or indirectly, export, re-export, or release the Bestway Products and Services to, or make the Bestway Products and Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Bestway Products and Services available outside the US.
4. Third-Party Materials. The Bestway Products and Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that we are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
6. Indemnification. You agree to indemnify, defend, and hold harmless Bestway (USA) Inc., its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your use or misuse of the Site or your breach of this Agreement, including but not limited to the content you submit or make available through the Site.
7. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
8. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Arizona.
9. Dispute Resolution and Binding Arbitration.
YOU AND BESTWAY (USA) INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE, LICENSE OR DOWNLOAD, INSTALLATION OR USE OF THE BESTWAY PRODUCTS AND SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(a) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 9. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
(b) You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within sixty (60) days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
(c) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR BESTWAY USA INC. WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
10. Assignment. You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section 10 is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
11. No Waivers. The failure by us to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Bestway (USA) Inc.
12. No Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you.
(a) To You. We may provide any notice to you under this Agreement by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under this Agreement, you must contact us as follows: by personal delivery, overnight courier, or registered or certified mail to Bestway (USA) Inc., 3435 S McQueen Road, Chandler, AZ 85286. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
14. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
15. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BESTWAY PRODUCTS AND SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.