Latham Pool Products, Inc. (“Latham,” “we,” “us,” “our”) welcomes you. We provide you access to our website located at https://www.lathampool.com/ (the “Website”) and the pool visualizer application (the “App,” together with the Website, the “Services”) subject to the following terms of use (the “Terms of Use”), which may be updated by us from time to time without notice to you.

BY ACCESSING OUR WEBSITE OR DOWNLOADING AND USING THE APP, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY https://www.lathampool.com/privacy-policy/ (THE “PRIVACY POLICY”), WHICH IS HEREBY INCORPORATED HEREIN AND MADE A PART HEREOF BY REFERENCE (COLLECTIVELY, THIS “AGREEMENT”).  IF YOU DO NOT AGREE TO ANY TERMS OF THE AGREEMENT, YOU MAY NOT USE THE SERVICES.

Latham reserves the right to modify the Terms of Use at any time without giving you prior notice. Your use of the Services following any such modification constitutes your agreement to follow and be bound by the Terms of Use as modified.

1) USE OF THE SERVICES

You may use the Services solely for non-commercial, personal purposes and/or to learn about Latham products. While using the Services, you may not:

• Use the Services for any unlawful purposes.
• Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind, including without limitation, any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation the United States export control laws and regulations and federal and state antitrust laws;
• Post or transmit any information or software that contains a virus, malware or other harmful component or otherwise interfere with, or attempt to interrupt the proper operation of, the Services;
• Compromise the security of the Services, render the Services inaccessible to others, or otherwise cause damage to the Services or the Content.
• Use the Services in any way that might interfere with the rights of other users or third parties.
• Access or use the Services to collect any market research for a competing business.
• Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
• Access or attempt to gain access to any Content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means.
• Decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services.
• Cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services.
• Use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission; and
• Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.

2) INTELLECTUAL PROPERTY

The Services are protected by copyright, trademark, and other laws of the United States and foreign countries.  Except as expressly provided in this Agreement, Latham and/or our licensors exclusively own all right, title, and interest in and to the Services, including all associated intellectual property rights.  You shall not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.

The Services contain material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Latham (collectively referred to as the “Content”).  The Content may be owned by us or third parties.  The Content is protected under both United States and foreign laws.  Unauthorized use of the Content may violate copyright, trademark, and other laws.

You may download and reprint Content for non-commercial, non-public, personal use only, and must keep all copyright and other proprietary notices attached to the downloaded material. No other use is permitted without the prior written consent of Latham.  Latham and/or our licensors retain all right, title, and interest, including all intellectual property rights, in and to the Services and Content.  You must retain all copyright and other proprietary notices contained in the original Content.  You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose.

If you violate any part of this Agreement, your permission to access the Services and the Content automatically terminates and you must immediately destroy any copies you have made of the Content.

The trademarks, service marks, and logos of Latham (the “Latham Trademarks”) used and displayed on the Content are registered and unregistered trademarks or service marks of Latham and/or our licensors.  Other company, product, and service names located on the Content may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Latham Trademarks, the “Trademarks”).  Nothing on the Content should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use.  Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing.  All goodwill generated from the use of Latham Trademarks inures to our benefit.

Elements of the Content are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.  None of the Content may be retransmitted without our express, written consent for each and every instance.

3) PRIVACY POLICY

Latham respects your privacy. The terms of Latham’s privacy policy are set forth at https://www.Latham.com/footer/privacy-policy/ and are incorporated herein.

4) THIRD-PARTY INFORMATION

Although we take certain steps to maintain the quality of the authorized dealers, distributors, contractors, and other third parties mentioned in the Services (collectively, Service Professionals), information about Service Professionals is provided AS-IS AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED. We do not endorse or recommend the services of any particular Service Professional. It is your responsibility to evaluate the Service Professional and their qualifications, and it is your decision to engage their services. WE DO NOT WARRANT ANY SERVICE PROFESSIONALS performance on the job or the outcome or quality of the services performed. Upon clicking on a third-party hyperlink button on the Services, you will leave the Services, and Latham is not responsible for the content at any hyperlinked web site. Service Professionals are independently owned and operated, and are neither affiliated with nor agents or representatives of Latham. Latham does not control the statements made by Service Professionals, and as such, does not guarantee the accuracy, integrity or quality of such content, and makes no representations or warranties as to, and accepts no duty or responsibility for, the performance, acts or omissions of such third parties.

5) COMMUNICATIONS WITH AND SUBMISSIONS TO LATHAM

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information.  With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.

6) PRODUCT DISPLAY/COLOR

The Services attempt to display product images shown as accurately as possible. However, we cannot guarantee that the color you see identically matches the product color because the display of the color depends, on a number of factors, including the computer monitor you are using to view the Content.

7) DISCLAIMER; LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LATHAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LATHAM DOES NOT WARRANT OR REPRESENT THAT: (A) ANY MATERIAL, RESULTS, AND/OR DATA DOWNLOADED OR OTHERWISE USED OR OBTAINED THROUGH THE SERVICES OR OTHER HYPERLINKED WEBSITE WILL BE ACCURATE OR RELIABLE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES OR OTHER HYPERLINKED WEBSITE WILL MEET YOUR EXPECTATIONS; (C) THAT ANY ERRORS, MISSTATEMENTS OR PROGRAMMING DEFECTS IN THE SITESERVICES WILL BE CORRECTED; OR (D) THAT ANY ACCESS TO THE SERVICES OR INFORMATION OR OTHER MATERIAL ACCESSIBLE ON THE SERVICES IS FREE OF VIRUSES, MALWARE OR OTHER HARMFUL ELEMENTS. LATHAM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (US $100).

SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

8) INDEMNIFICATION

You agree to indemnify, defend and hold harmless Latham, its affiliated companies, business partners, licensors, employees, agents, and any third-party information providers from and against all claims, losses, expenses, damages and costs and reasonable attorneys’ fees, resulting from or arising out of: (i) your breach of this Agreement; (ii) your misuse of the Content or the Services; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right.  We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding.  We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section.  In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

9) COMPLIANCE WITH APPLICABLE LAWS

The Services are based in the United States and is only available to United States residents.  We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States.  If you access the Services or the Content from outside of the United States, you do so at your own risk.  Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

10) DOWNLOADING THE APP

We make the App available through the Apple App Store and the Google Playstore.  The following terms apply when you download the App from Apple’s App Store.  These terms are in addition to all other terms contained in the Agreement.

• You acknowledge and agree that (i) the Agreement is concluded between you and Latham only, and not Apple; and (ii) Latham, not Apple, is solely responsible for the App and content thereof.  Your use of the App must comply with the App Store Terms of Service.
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
• In the event of any failure of any of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the applicable App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.  As between Latham and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Latham.
• You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between Latham and Apple, Latham, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
• You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.

11) TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability.  Sections 2, 5-9, and 11-14 shall survive the termination of this Agreement.

12) RESTRICTIONS

The Services are available only to individuals aged 13 years or older.  If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.  If you are under the age of 13, you may use the Services only with the consent of your parent or guardian.

13) GOVERNING LAW

The Agreement between you and Latham shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and Latham agree to submit to the sole and exclusive personal jurisdiction of the federal and state courts located within the State of New York for any dispute arising from, or related to, this Agreement.

14) MISCELLANEOUS

The failure of Latham to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.  Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.  The section headings are provided merely for convenience and shall not be given any legal import.  This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.