The BioGuard Tru•Blue Promise™ Program
Bio-Lab, Inc. (“Bio-Lab”) has introduced the BioGuard Tru•Blue PromiseTM Program to reinforce and further Bio-Lab’s standard product warranties as contained on the relevant label(s) of Eligible Products (defined below). This unique program allows Customers (defined below) to be provided with a BioGuard Tru•Blue Solution Kit (defined below) in the event your use of Eligible Products does not prevent algae or cloudy water in your pool. The BioGuard Tru•Blue Promise Program is time-limited and limited to Customers who use Eligible Products, as discussed herein. In order to participate in the BioGuard Tru•Blue Promise Program, you must agree to these Terms and Conditions. If you do not agree to any part of these Terms and Conditions, you may not participate in the Program. Enrollment in the Program constitutes your acceptance of these Terms and Conditions.
1. General. These Customer Terms and Conditions for the BioGuard Tru•Blue Promise Program (“Terms”) are the exclusive terms and conditions that govern your (as a “Customer”) participation in the Bio-Guard Tru•Blue Promise Program (the “Program”) operated by, or on behalf of, Bio-Lab, Inc. (the “Company”). By participating in the Program, Customer agrees to be bound by these Terms which comprise the entire agreement between the Customer and the Company as to the Program, and supersede all prior or contemporaneous agreements related to the Program. These Terms do not modify any warranty contained in, or on, any label of an Eligible Product; in the event of any conflict between these Terms and such warranty, the warranty shall prevail.
2. The Program. If Eligible Products (defined below) are used by a Customer as set out in these Terms and pursuant to the label instructions on such products and do not prevent algae or cloudy water in the Customer’s pool during the Program Term as outlined in Section 3, the dealer of Company products from whom Customer purchased Eligible Products (“Dealer”) shall provide the Customer, at no charge, with a BioGuard Tru•Blue Promise Solution Kit to treat and eliminate such algae or cloudy water problem. In order to be provided with a BioGuard Tru•Blue Promise Solution Kit, Customer must (i) bring a water sample to the Dealer for testing through the ALEX® Water Analysis System at such interval as recommended by the Dealer, and in no event less frequently than every six weeks; and (ii) make adjustments as recommended by the Dealer. If, and only if, the Dealer and/or such testing confirms the algae or cloudy water issue, the Dealer will provide the Customer with a BioGuard Tru•Blue Promise Solution Kit as recommended by the ALEX® Water Analysis System. Customer acknowledges and agrees that the exact composition of a BioGuard Tru•Blue Promise Solution Kit may vary as among Customers based on the analysis performed by the ALEX Water Analysis System.
3. Program Term. The Program shall commence on February 15, 2017 and shall terminate on December 1, 2017. A Customer may terminate its participation in the Program for any or no reason by providing written notice of such termination to the Company, and the termination shall be effective as of the date such notice is received by the Company. Similarly, the Company may terminate a Customer’s participation in the Program for any or no reason upon written notice to the Customer, which termination shall be effective as of the date such notice is received by the Customer.
4. Eligible Customers. Only eligible Customers may register for, and participate in, the Program. Customer represents and warrants to the Company that he/she is eligible to register for, and participate in, the Program subject to these Terms. Customers eligible to participate in the Program are limited to individual owners of in-ground or above-ground pool(s) that use a chlorine sanitizing system, and who exclusively use Eligible Products during the Program’s term. Customers must (i) get water tested regularly at the Dealer using the ALEX Water Analysis System, at such intervals as recommended by the Dealer but in no event less frequently than every six weeks and (ii) make adjustments as recommended by the Dealer, to be eligible under the Program. Customer shall purchase Eligible Products from the Dealer and use such products as provided herein and subject to the instructions on the label of such products. Owners of swim spas, commercial pool owners, and Customers whose pools use salt, bromine or biguanide pool sanitizing systems are not eligible to enroll in the Program. A Customer may only register for the Program once, but the Program can cover multiple eligible pool systems for each Customer, so long as the Customer complies with the eligibility requirements of the Program, for each pool. In order to enroll in the Program, a Customer shall provide Dealer with requested registration information, which shall evidence Customer’s consent to participate in the Program and acceptance of these Terms. Dealer will provide Customer with the Company-provided registration packet that includes a Program description and a Program membership card with unique ID; Dealer also will register the Customer through an online portal provided by the Company, and provide through such portal the Customer’s name, email address and unique ID number from the Company-provided Program membership card, and attach proof of purchase for the Eligible Products (as defined below).
5. Eligible Products and Use. As a condition of participating in the Program, Customer shall (i) purchase at least one qualifying product from each of Step 1, Step 2 and Step 3 and either Pool Complete or Optimizer Plus; and (ii) use such products as provided in or on the relevant product label. For purposes of the Program, Step 1 products (sanitizers) are limited to SilkGuard® products (1” SilkGuard® Tabs, 3” SilkGuard® Tabs, SilkGuard® Sticks, Simart SilkGuard® Sticks). Step 2 products (shock) are limited to Smart Shock®, Easy Shock N’ Swim®, BurnOut® 3, BurnOut® 35, and BurnOut ®73. Step 3 products are limited to Back Up® 2, Algae All 60®, and Banish®.
7. General Release and Hold Harmless. Customer hereby releases, holds harmless, and forever discharges the Company, and its direct and indirect parents, subsidiaries, affiliates, Dealers and their respective directors, officers, employees, shareholders, and agents from any and all liability, loss, harm, damage, cost, or expense associated with the Customer’s participation in the Program.
8. Dealer or Customer Acts or Omissions. If the Company’s performance of its obligations under the Program is prevented or delayed by any act or omission of Dealer or its agents, subcontractors, consultants or employees, or the Customer, the Company shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges or losses sustained or incurred by the Dealer or the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
9. Fees and Expenses. Customer shall not be compensated pursuant to, or by virtue of, the Program in any other manner. Except as otherwise provided in these Terms, each party shall bear its own costs and expenses associated with participating in the Program.
10. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Dealer pursuant to these Terms or otherwise pursuant to the Program or prepared by or on behalf of the Company shall be owned by the Company. No license to Customer to use such Intellectual Property Rights is granted pursuant to these Terms.
11. Disclaimer of Warranties. THE COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PROGRAM, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12 Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER, DEALER, OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PROGRAM, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $50.
13. Miscellaneous. Customer’s obligations, duties and/or rights under these Terms shall not be assignable, voluntarily, involuntarily or by operation of law, and any such attempt at assignment shall be void. No modification or waiver of these Terms or any part shall be valid or effective unless in writing signed by the Company. No waiver of any breach or condition of these Terms shall be deemed to be a waiver of any other subsequent breach or condition, whether of like or different nature. The headings contained herein are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of these Terms. Each provision of these Terms shall be considered separable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation or affect those portions of these Terms which are valid. The Company shall not be liable or responsible to Dealer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Lawrenceville and County of Gwinnett, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the Company at firstname.lastname@example.org and to the Customer at the email address provided by the Customer at the time of registering for the Program. Customer consents to being contacted by the Company electronically.