This Leslie’s AccuBlue Home Membership Agreement (this “Agreement”), effective as of the date of first acceptance (the “Effective Date”), is entered into by and between Leslie’s Poolmart, Inc. (“Leslie’s”) and the individual accepting this Agreement (“Customer”). Leslie’s and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
BY SUBSCRIBING TO, USING, HAVING ACCESS TO, OR RECEIVING ONE OR MORE SERVICES, DEVICES, AND CREDITS IN THE LESLIE’S ACCUBLUE HOME PROGRAM, CUSTOMER (A) ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; AND (B) REPRESENTS THAT CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH THIS AGREEMENT, THEN CUSTOMER WILL NOT BE AUTHORIZED TO SUBSCRIBE TO, USE, ACCESS, OR RECEIVE ANY SERVICES OR DEVICES IN THE LESLIE’S ACCUBLUE HOME PROGRAM.
1. Rights and Activities
2. Term and Termination
Subject to the terms and conditions of this Agreement, the term of this Agreement and Customer’s right to use or access the AccuBlue Home Program begins on the Effective Date and, unless this Agreement is terminated pursuant to its express provisions, shall continue in effect on a month-to-month basis (the “Term”). During the Term of this Agreement, Customer may suspend its membership to the AccuBlue Home Program for a period of up to four (4) months at any time, in any twelve (12) month period, by either (a) logging onto Customer’s account at www.lesliespool.com, going into “Manage Subscriptions” and selecting [pause] for the months Customer wishes to suspend its membership, or (b) providing an advance written notice to Leslie’s at AccuBlueHome@lesliespool.com (the “Suspension Period”). Suspension shall not become effective until the monthly anniversary of the Membership Effective Date (as defined below) immediately following such written notice, and Customer shall not be entitled to any refund. During the Suspension Period, Customer may keep the AccuBlue Home Device and shall continually comply with the terms and conditions of this Agreement except the requirement to pay the monthly Membership Fee for the AccuBlue Home Program defined under Section 3 of this Agreement; however, Customer shall not be able to use or access any feature or functionality of the AccuBlue Home Program. During the Term of this Agreement, Customer may terminate this Agreement and cancel its membership to the AccuBlue Home Program at any time by either (x) logging onto Customer’s account at www.lesliespool.com, going into “Manage Subscriptions” and selecting cancel, or (y) providing an advance written notice to Leslie’s at AccuBlueHome@lesliespool.com. Cancellation shall not become effective until the monthly anniversary of the Member Effective Date immediately following such written notice, and Customer shall not be entitled to any refund. In addition to any other express termination rights set forth in this Agreement, Leslie’s may terminate this Agreement, effective immediately on written notice to Customer, if Customer: (i) fails to pay any undisputed fees or other amounts when due hereunder; (ii) breaches any of Customer’s obligations under this Agreement; or (iii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due. Upon any termination of this Agreement, all rights and licenses granted to Customer under this Agreement shall cease immediately. In addition, upon any termination of this Agreement, Customer shall immediately cease using or accessing the AccuBlue Home Program and return the AccuBlue Home Device as set forth in Section 4 of this Agreement; however, Customer acknowledges and agrees that cancellation of membership to the AccuBlue Home Program shall not affect Customer’s obligation to pay all undisputed fees or other amounts that may have become due, or entitle Customer to any refund of any fees and other amounts payable by Customer under this Agreement. Customer further acknowledges and agrees that cancellation of membership to the AccuBlue Home Program shall not affect Customer’s obligations under this Agreement that survive such cancellation.
To subscribe to, use, access or receive one or more services, devices or credits under the AccuBlue Home Program pursuant to this Agreement, Customer must pay Leslie’s a non-refundable monthly membership fee of fifty US Dollars ($50.00) (the “Membership Fee”). The initial Membership Fee shall be payable on the date Leslie’s ships the AccuBlue Home Device to Customer (“Membership Effective Date”), and Customer hereby authorizes Leslie’s to charge the Membership Fee to Customer’s payment method monthly thereafter unless or until Customer cancels its membership to the AccuBlue Home Program in accordance with this Agreement. Upon payment of the monthly Membership Fee, Customer will receive fifty (50) of Leslie’s AccuBlue membership credits equal to fifty (50) dollars in credit (the “AccuBlue Membership Credits”). The AccuBlue Membership Credits are effective for one (1) year (including the time during any Suspension Period) beginning on the date of Customer’s payment of each monthly Membership Fee (the “Effective Period”). During the Effective Period, the AccuBlue Membership Credits may be used by Customer to purchase designated Leslie’s services or goods available in Leslie’s retail store, online store, and/or mobile application. The AccuBlue Membership Credits have no monetary value and are not refundable in part or in full. The Membership Fee is not refundable in part or in full after any termination of this Agreement. If Customer fails to make any undisputed Membership Fee payment when due, without limiting other rights and remedies of Leslie’s hereunder or at law in equity, Leslie’s may charge interest on the past due amount(s) at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law, and Customer shall reimburse Leslie’s for all reasonable costs incurred by Leslie’s in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, and Customer is responsible for all such taxes, other than any taxes imposed on Leslie’s income.
4. AccuBlue Home Device
Subject to the terms and conditions of this Agreement, the AccuBlue Home Device is licensed to Customer at no cost on a monthly basis as part of Customer’s membership to the AccuBlue Home Program. The AccuBlue Home Device also includes any software, firmware, or other programs contained within the AccuBlue Home Device. Customer shall use the AccuBlue Home Device in accordance with the terms of this Agreement and all of the documentation, user guidance, training, and other materials relating to the AccuBlue Home Device and AccuBlue Home Program. Customer agrees that the AccuBlue Home Device shall at all times remain the property of Leslie’s and Customer shall not acquire any ownership or other interest in the AccuBlue Home Device by virtue of this Agreement or by any use of the AccuBlue Home Device. Customer is solely responsible and liable for all use of the AccuBlue Home Device. Customer may connect the AccuBlue Home Device with Leslie’s mobile application via bluetooth to use or access the services or goods provided by Leslie’s. Customer acknowledges that the AccuBlue Home Device does not include certain supplies that Customer may purchase from Leslie’s that may be required to utilize some or all of the features and/or functionality of the AccuBlue Home Device and AccuBlue Home Program, including but not limited to, water testing disks that are separately available from Leslie’s for purchase by Customer. Leslie’s may, at any time and in any manner, upgrade, replace, remove, or otherwise make changes to the AccuBlue Home Device, and Customer here consents to any such change, including but not limited to, hardware changes, or software, firmware and other code updates or downloads, with or without notice to Customer, which may alter, add to, or remove features or functionalities of the AccuBlue Home Device. Customer acknowledges and agrees that any such change to the AccuBlue Home Device by Leslie’s may interrupt Customer’s access to and/or use of the AccuBlue Home Program. Customer shall not sell, lease, abandon, encumber, or otherwise give away the AccuBlue Home Device. Customer agrees that Customer shall not, and shall not permit a third party to, damage, destroy, repair, service, alter, modify, tamper or otherwise interfere with the AccuBlue Home Device, or improperly use the AccuBlue Home Device, without the prior written consent of Leslie’s, which Leslie’s may withhold in its sole discretion. The returned AccuBlue Home Device must be in good condition and without any encumbrances, except for ordinary wear and tear resulting from proper use. Customer agrees that Leslie’s may terminate this Agreement and/or recover damages from Customer for any loss or damage caused to the AccuBlue Home Device. Customer agrees that within thirty (30) days following any termination of this Agreement, Customer shall return the AccuBlue Home Device to Leslie’s according to instructions provided by Leslie’s. Customer acknowledges and agrees that if it fails to return the AccuBlue Home Device in accordance with the foregoing requirements, Leslie’s may charge Customer the full amount of the value of the AccuBlue Home Device. This provision shall survive cancellation of membership to the AccuBlue Home Program and termination of this Agreement.
5. AccuBlue Home Program
Customer shall use the AccuBlue Home Program solely for noncommercial, residential purposes in accordance with the terms of this Agreement. Customer is solely responsible and liable for any and all use of or access to the AccuBlue Home Program. Customer shall not, directly or indirectly: (i) lease, lend, sell, license, sublicense, transfer, or otherwise make available any services, devices, or credits of the AccuBlue Home Program to any third party for any commercial purpose; (ii) use any services, devices, or credits of the AccuBlue Home Program in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right of any person, or that violates any applicable law; or (iii) utilize any services, devices, or credits of the AccuBlue Home Program to create, develop, enhance, or modify any competing product or service. Leslie’s may suspend and/or terminate Customer’s use of or access to any portion or all of the services, devices, or credits of the AccuBlue Home Program if Leslie’s reasonably determines that Customer is using or accessing the AccuBlue Home Program in violation of any provision of this Section 5 (any such suspension and/or termination a “Program Suspension/Termination”). Leslie’s shall have no liability for any damage, liabilities, losses, or any other consequences that Customer may incur as a result of a Program Suspension/Termination.
6. Data Rights
Notwithstanding anything to the contrary in this Agreement, Leslie’s may monitor Customer’s access to and use of the services, devices, and credits of the AccuBlue Home Program, and collect, compile, and use data and information related to such access and use in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the AccuBlue Home Program (“Aggregated Statistics”). As between Leslie’s and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Leslie’s. Further, Customer acknowledges that Leslie’s may compile Aggregated Statistics based on Customer’s data. Customer agrees that Leslie’s may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer or Customer’s confidential information. Customer hereby grants to Leslie’s a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, sublicensable, worldwide license to access, revise, reproduce, distribute, monetize, and otherwise use and display the Customer data and perform all acts with respect to the Customer data as necessary for Leslie’s to provide the AccuBlue Home Program to Customer, and a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, sublicensable, worldwide license to access, revise, reproduce, distribute, monetize and otherwise use and display Customer data incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and Leslie’s, Leslie’s owns all right, title, and interest, including all intellectual property rights, in and to the AccuBlue Home Program and Aggregated Statistics.
7. Intellectual Property Ownership and Confidentiality
All intellectual property rights in the AccuBlue Home Program and AccuBlue Home Device are owned by Leslie’s and its licensors, and other than the limited rights granted in Section 1, no other rights or permissions to use the AccuBlue Home Program and AccuBlue Home Device are granted to Customer and are expressly reserved by Leslie’s and its licensors. Further, the AccuBlue Home Program and AccuBlue Device constitute or otherwise include the valuable proprietary and confidential information of Leslie’s and its licensors, including, without limitation, source code and other non-public data and information, and Customer shall not misappropriate or otherwise disclose or otherwise use such proprietary and confidential information except solely as necessary to exercise the license rights granted in this Agreement. Except as expressly set forth herein, neither Party shall be deemed to grant the other Party any license or rights under any intellectual property or other proprietary rights.
8. Warranty and Disclaimers
Each Party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; and (b) it will comply with all applicable laws and regulations in its performance of this Agreement. CUSTOMER ACKNOWLEDGES THAT ALL THE SERVICES AND DEVICES OF THE ACCUBLUE HOME PROGRAM, INCLUDING BUT NOT LIMITED TO, THE ACCUBLUE HOME DEVICE, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES. LESLIE’S MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AS TO THE SERVICES AND DEVICES OF THE ACCUBLUE HOME PROGRAM PROVIDED TO CUSTOMER. LESLIE’S DOES NOT MANUFACTURE ANY HARDWARE OR SOFTWARE OF THE ACCUBLUE HOME PROGRAM AND IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS ON THE PART OF ANY MANUFACTURER, SPECIFICALLY INCLUDING A MANUFACTURER OF THE ACCUBLUE HOME DEVICE. SUBJECT TO ANY WARRANTIES TO THE PRODUCTS PROVIDED TO CUSTOMER BY THE MANUFACTURER OF SUCH HARDWARE OR SOFTWARE, SO FAR AS LESLIE’S IS CONCERNED, SUCH HARDWARE AND SOFTWARE PUBLISHED ARE PROVIDED ON AN “AS-IS” BASIS BY LESLIE’S WITHOUT ANY WARRANTY OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, PROVIDED THAT THE DISCLAIMER CONTAINED IN THIS SECTION DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. UNLESS OTHERWISE RESTRICTED OR PROHIBITED BY APPLICABLE LAW, NEITHER LESLIE’S NOR ANY OF ITS SUPPLIERS MAKES ANY WARRANTY THAT THE SERVICES AND DEVICES OF THE ACCUBLUE HOME PROGRAM WILL BE ACCURATE, COMPLETE, ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR FREE FROM VIRUSES OR OTHER MALICIOUS AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THOSE PROVISIONS MAY NOT APPLY TO CUSTOMER. THIS SECTION SHALL CONTINUE IN EFFECT AFTER CANCELLATION OF MEMBERSHIP TO THE ACCUBLUE HOME PROGRAM OR TERMINATION OF THIS AGREEMENT.
9. Indemnification; Limitations of Liability
Customer shall indemnify, defend and hold harmless Leslie’s and its parent companies, subsidiaries, affiliates, suppliers, contractors, distributors, licensors and business partners, as well as the officers, directors, employees, agents and representatives of each of these (each a “Leslie’s Related Party”, and collectively, the “Leslie’s Related Parties”) from any third-party claims, actions, proceedings, damages and liabilities, including attorneys’ fees (“Third Party Claim”), arising out of or related to Customer’s (a) negligence or willful misconduct; (b) use of any services, devices or credits of the AccuBlue Home Program in a manner not authorized by this Agreement; (c) use of any services, devices or credits of the AccuBlue Home Program in combination with any hardware, software, data, chemical, equipment or technology not provided by Leslie’s or authorized by Leslie’s in writing; (d) modifications to any services, devices, or credits of the AccuBlue Home Program without prior written consent of Leslie’s; (e) act in violation of any law in connection with this Agreement; and (f) breach of this Agreement. Customer may not settle any Third-Party Claim unless Leslie’s consents to such settlement, and further provided that Leslie’s shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. THE PARTIES AGREE THAT FOR ANY CLAIMS CUSTOMER ASSERTS AGAINST LESLIE’S OR THE LESLIE’S RELATED PARTIES AND FOR ANY CLAIMS THAT LESLIE’S OR THE LESLIE’S RELATED PARTIES ASSERTS AGAINST CUSTOMER, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THERE SHALL BE NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUE OR INCREASED COSTS OF OPERATION, OR FOR PUNITIVE DAMAGES, RELIANCE DAMAGES, OR SPECIAL DAMAGES, IN EACH CASE REGARDLESS OF WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LESLIE’S OR THE LESLIE’S RELATED PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY EXCEED ONE HUNDRED DOLLARS ($100.00).
This Agreement, together with any other documents incorporated herein by reference and otherwise made available to Customer in connection with the AccuBlue Home Program, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties with respect to such subject matter. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without regards to its conflicts of laws provisions. Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Leslie’s, and any purported assignment in violation of this Agreement is null and void. Leslie’s may assign all or part of this Agreement without notice to Customer and without Customer’s consent. Leslie’s may modify this Agreement at any time by posting a revised version at https://lesliespool.com/accubluehome-membership-agreement.html, which modifications will become effective as of the date when they were first posted. Further, Leslie’s expressly reserves the right to modify, make changes to, suspend, discontinue, or cease the AccuBlue Home Program at any time during the Term of this Agreement. If Customer objects to the updated Agreement and/or such modification changes, suspension, discontinuance, and/or cessation to the AccuBlue Home Program, as its sole and exclusive remedy, Customer may choose to cancel its membership to the AccuBlue Home Program. The failure of Leslie’s to require Customer’s strict performance of any term of this Agreement shall not be a waiver of the right of Leslie’s to require strict performance of any term or condition herein. Leslie’s shall not be liable for any delay, interruption, or failure of any services or devices of the AccuBlue Home Program, or any loss, liability or damage directly or indirectly caused by circumstances beyond the control of Leslie’s, including but not limited to, acts of God, flood, explosion or other catastrophes.
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