General Terms and Conditions
Welcome to the nurserywater.com Web site
DS Waters of America, Inc and its affiliates and subsidiaries (“DSW”) provide our products and services to you subject to the following terms and conditions (“Terms and Conditions”). These Terms and Conditions apply to DSW and the Web site under the domain name www.nurserywater.com and all Web sites accessible through www.nurserywater.com (collectively the “Sites”). By accessing, viewing and/or using the Sites, you acknowledge and understand that these Terms and Conditions are the legal equivalent of a signed, written contract, and you accept and agree to be bound by these Terms and Conditions. DSW reserves the right to change our policies and procedures from time to time, in our sole discretion, and your continued use of the Sites following any changes will be deemed to constitute acceptance of the changes. If any term or condition is deemed invalid, void or for any reason unenforceable, that term or condition is deemed severable and does not affect the validity and enforceability of any remaining term or condition. As used throughout these Terms and Conditions, the terms “you” and “your” mean the person(s) accessing, viewing or using the Sites. “Our” means DSW.
Your User Name and Password
When you register to use the nurserywater.com site (“Account Management Site”), you will be prompted to set up your user name and password when you log onto the Account Management Site for the first time. If you have problems accessing the Account Management Site, please contact Customer Service at 1-800-682-0246. You should treat your user name and password with the same degree of care that you use to protect other sensitive financial information. You agree not to give, or make available, your user name or password to any other person. You agree to notify DSW immediately if your user name or password is misused, lost, misplaced or disclosed without your permission by contacting Customer Service at 1-800-682-0246.
Your Account
If you use the Sites, you are responsible for maintaining the confidentiality of your DSW account and your user name and password. You agree to accept responsibility for all activities related to your account, user name or password. DSW reserves the right to terminate your account or access to the Sites in our sole discretion.
Charges
DSW charges you no additional fees to register for our Account Management Site.
Copyrights
The works of authorship contained on the Sites, including, but not limited to, all design, text, graphics, sound recordings, images and logos (collectively “Copyrights”), are owned, except as otherwise expressly stated, by DSW and are protected by United States and international copyright laws and regulations. In addition, DSW owns Copyrights to the Sites as a collective work or compilation, and in the selection, coordination, enhancement and arrangement of the content of the Sites. Except as otherwise expressly stated herein, the Copyrights may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without the prior written consent of DSW. DSW does not grant any express or implied rights to you in the Copyrights and enforces its intellectual property rights to the fullest extent of the law. The entire contents of the Sites are copyrighted ©DS Waters of America, Inc 2006. All rights reserved.
Trademarks
The names DS Waters of America, Inc, Nursery Water and any other brand names, taglines, graphics, logos, service marks and icons (collectively the ”Marks”) identifying DSW, the Sites, or DSW products or services are proprietary trademarks of DSW. The Marks included in the Sites are protected by trade dress and other laws and may not be copied or imitated in whole or in part in any manner without the prior written consent of DSW. All other trademarks not owned by DSW that appear on the Sites are the property of their respective owners, and you are not permitted to use the trademarks without the prior written consent of the respective owner. Except as expressly provided in the License section, nothing contained in these Terms and Conditions may be construed as granting or permitting any right to use the Marks.
License and Site Access
Your continued compliance with these Terms and Conditions provides you with a limited, personal, revocable, nonexclusive, nontransferable license to use the Sites. This license does not include any resale rights or commercial use of the Sites or their contents. You are authorized to electronically download or copy the materials published on these Sites solely for your personal, noncommercial informational use. Any contents of the Sites which are downloaded must include the copyright notice set forth in the Copyrights section of these Terms and Conditions. You acknowledge that you do not acquire any ownership rights in the Copyrights or Marks by downloading copyrighted and/or trademarked contents. Except as expressly provided herein, you may not modify, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, duplicate, frame, deep link, or otherwise use any information or contents obtained from or through the Sites without the prior written permission of the owner of the respective contents. As a condition of your access, view and/or use of the Sites, you agree that you will not access, view or use the Sites for any purpose that is unlawful, unauthorized or inconsistent with these Terms and Conditions and any applicable laws or regulations, and you agree that the limited license granted you in this section will terminate immediately upon your violation of this Agreement. DSW reserves the right to terminate your access to the Sites and their contents at any time, with or without cause or notice, in our sole discretion.
Site Disruptions
DSW is not responsible or liable if or when your access to the Site(s) is or becomes delayed, limited, slow or otherwise unavailable due to hardware or software failure; overload of system capacities; damage caused by severe weather, earthquakes, hurricanes, natural disasters or other acts of God; wars, insurrections, riots, acts of terrorism; interruption of power or other utility services; strikes or other work stoppages; governmental or regulatory restrictions; court or administrative orders or rulings; or any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of DSW. Furthermore, DSW is not liable for any computer viruses, malicious code or other defect in the Sites or incompatibility among the Sites, files and your browser or other site accessing program.
Electronic Communications
When you visit the Sites or send e-mails to DSW, you are communicating with DSW electronically and agree to receive communications from DSW electronically. DSW will communicate with you by e-mail or by posting notices on the Sites. You agree that all communications provided by DSW to you electronically satisfy all legal requirements that the communications be in writing.
Your Submissions
DSW welcomes your comments, suggestions, ideas or questions about the Sites or any of the products or services offered by DSW. You agree that comments, ideas, suggestions or other information (collectively “Submission(s)”) that you provide to DSW in any manner (whether verbally or in writing) about any of our products, services or the Sites (including the personal name that you provide DSW with any Submission) are not confidential. By providing any Submission, you grant DSW a royalty free, perpetual, irrevocable, nonexclusive right and license for DSW to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works from, display worldwide or act on the Submission without additional approval or consideration in any form, media or technology now known or later developed for the full term of any rights that may exist in the Submission, and you waive any claim to the contrary. You represent that you own or otherwise control all of the rights to the Submission that you provide and that use of your Submission by DSW will not infringe upon or violate the rights of any third party.
Links to Other Sites
Links to non-DSW Web sites are provided solely as pointers to information on topics that may be useful to you. DSW makes no representation or warranty, either express or implied, about the content of any non-DSW Web site, including, but not limited to, the accuracy, completeness, reliability or suitability thereof for any particular purpose. Links to non-DSW Web sites do not imply that DSW endorses, or is responsible for, the opinions, ideas, images, products, information or services offered by the non-DSW Web sites.
Indemnity
You agree to indemnify, defend and hold harmless DSW and all of its employees, agents, officers, directors, proprietors, partners, representatives, shareholders, servants, attorneys, accountants, predecessors, successors and assigns from and against any and all claims, proceedings, damages, injuries, losses, costs and expenses (including reasonable attorneys' fees and litigation expenses) or other liabilities relating to or arising from your access, view and/or use of the Sites or any breach by you of these Terms and Conditions.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
DSW USES REASONABLE EFFORTS TO PROVIDE YOU THE MOST CURRENT AND ACCURATE INFORMATION AVAILABLE ABOUT THE SITES AND THEIR CONTENTS INCLUDING, BUT NOT LIMITED TO, OUR PRODUCTS AND SERVICES, THE INFORMATION CONTAINED ON THESE SITES MAY INCLUDE, INACCURACIES, TYPOGRAPHICAL ERRORS OR OUTDATED INFORMATION. DSW MAY MAKE MODIFICATIONS OR CHANGES TO THE SITES OR THEIR CONTENTS AT ANY TIME, FOR ANY REASON. DSW ASSUMES NO RESPONSBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION OR CONTENTS OF THE SITES. DSW RESERVES THE RIGHT TO REFUSE OR CANCEL YOUR ORDER AT ANY TIME IN OUR SOLE DISCRETION, INCLUDING BUT NOT LIMITED TO, ANY ORDER THAT VIOLATES OR MAY VIOLATE APPLICABLE LAW. DSW ALSO RESERVES THE RIGHT TO LIMIT THE PRODUCTS OR SERVICES THAT YOU MAY PURCHASE THROUGH THE SITES.
YOU EXPRESSLY ASSUME THE SOLE RISK OF ACCESSING, VIEWING AND/OR USING THE SITES AND THEIR CONTENTS. DSW MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY IN YOUR JURISDICTION OR ACCURACY OF THE SITES AND THEIR CONTENTS FOR ANY PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS. THE SITES AND THEIR CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES IS DSW OR ITS VENDORS LIABLE FOR ANY INDIRECT, CONSEQUENCIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF YOUR ACCESS, VIEW AND/OR USE OF THE SITES OR THEIR CONTENT (INCLUDING BUT NOT LIMITED TO YOUR ABILITY TO ACCESS, VIEW AND/OR USE THE SITES OR THEIR CONTENT), REGARDLESS OF WHETHER DSW HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
These Sites are generally accessible throughout the continental United States and feature products and/or services that are generally available for purchase from DSW within the continental United States but may not be available in your area. The references to any products or services on these Sites do not imply or warrant that the products or services are available in your particular location. Please contact DSW Customer Service for specific product or service availability in your area.
Governing Law
By accessing, viewing and/or using these Sites, you agree that all matters relating to these Terms and Conditions, and your access, view and/or use of the Sites shall be governed by the laws of the State of Georgia, without regard to the conflicts of laws principles. Any action to enforce these Terms and Conditions will be brought in the federal or state courts presiding in Atlanta, Georgia, and you expressly agree to be subject to the personal jurisdiction and venue of the courts. DSW makes no representation that the information or content on these Sites is appropriate or available for use in other locations. Your access, view and/or use of the information or content on these Sites or the use or purchase of any products or services from any location where any of the contents of these Sites are illegal is prohibited. If you choose to access or make purchases from these Sites from other locations, you do so voluntarily and of your own accord, and you are responsible for compliance with applicable laws. These Terms and Conditions shall be subject to any other agreements you have entered into with DSW.
Dispute Resolution
You agree that if any difference of interpretation, dispute, controversy or claim (“Claim”) arises with respect to your accessing, viewing and/or using the Sites and their contents, including, but not limited to, the online payment service, you will promptly make good faith efforts to negotiate a written resolution of the Claim with DSW before taking any legal, administrative or other dispute resolution action whatsoever. You agree that if the Claim remains unresolved within forty five (45) days after the Claim arises, DSW and you will engage in mediation to resolve the Claim using a third party mediator that is reasonably acceptable to both you and DSW. If you file any arbitration claim, administrative/governmental agency claim or legal action of any kind against DSW without first using good faith efforts to resolve the Claim by mediation, you agree to waive any rights you may have to recover attorneys' fees, court costs or other legal expenses related to the Claim, even if you are otherwise entitled to recover such cost under any applicable law or regulation.
General
In the event that any provision contained in these Terms and Conditions is held by a court of competent jurisdiction to be contrary to any law or regulation, the remaining provisions of these Terms and Conditions will remain in full force and effect. No joint venture, partnership, employment or agency relationship exists between you and DSW as a result of these Terms and Conditions or your access, view and/or use of these Sites. The waiver by DSW of any breach or default under these Terms and Conditions shall not constitute the waiver of any subsequent breach or default. These Terms and Conditions constitute the entire agreement between you and DSW with respect to your accessing, viewing and/or using the Sites and supersede any prior negotiations, promises, understandings, agreements, course of dealing or performance, representations, warranties, or communications, whether oral or written, between you and DSW.
