Terms of Service

GENERAL

These Terms of Use (“Terms”) represent a legal agreement between you (“you”) and onWater, LLC (“onWater”, “we,” or “us”), that governs your access to and use of the onWater Mobile App, website and related products and services (collectively, the “Product”), including all data, software, third-party interfaces, electronic documentation, images, photographs and other content (we refer to the foregoing as “Protected Materials”).

PLEASE READ THESE TERMS CAREFULLY BEFORE BROWSING THIS SITE. USING THIS SITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS SITE IF YOU DO NOT ACCEPT THESE TERMS.

THESE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TERMS OR YOUR ACCESS TO OR USE OF THE PRODUCTS, AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION. PLEASE REVIEW THE ARBITRATION SECTION CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

Changes to the Terms onWater reserves the right to change the Terms at any time upon notice to you. onWater may give notice by making the updated Terms available in the Service or by any other reasonable means. You can access and review the most current version of the Terms at any time at: https://onwaterapp.com/terms-and-conditions. The updated Terms are binding on you as of the next date that you use the Service after the date of updated Terms. If you do not agree to the updated Terms, you must stop using the Service. Your continued use of the Service after the effective date posted at the top of the Terms will constitute your acceptance of the updated Terms.

USE OF THE PRODUCT

By using this Site or the Product, you promise that you are at least 18 years of age. If you are not yet 18 years old, you must have the permission of an adult to use the Product and agree to its Terms, and that an adult must be a parent or legal guardian who is willing be responsible for your use.

These Terms permit you to use the Product 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 Website, except as follows:

Your device 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. You may print or download one copy of a reasonable number of pages of the Product for your own personal, non-commercial use and not for further reproduction, publication, or distribution. 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. If we provide social media features with certain content, you may take such actions as are enabled by such features. Compatibility Issues We make the Product available via a mobile device and website. To use the Product on a mobile device, you must have a compatible mobile device. We do not warrant that the Product will be compatible with your particular mobile device. We hereby grant to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Product for one registered account on one mobile device owned or leased solely by you, for your personal use.

RESTRICTIONS ON USE

You may not: (i) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Product to any third-party or use the Product to provide time sharing or similar services for any third-party; or (ii) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Product, features that prevent or restrict use or copying of any content accessible through the Product, or features that enforce limitations on use of the Product.

IOS TERMS

The following additional terms and conditions apply with respect to any Product that we provide to you designed for use on an Apple iOS-powered mobile device (an “iOS Product”):

• You acknowledge that these Terms are between you and us only, and not with Apple, Inc. (“Apple”).
• Your use of our iOS App must comply with Apple’s then-current App Store Terms of Service.
• We, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
• You agree that we, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
• You agree that we, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., You must not be in violation of your wireless data service terms of agreement when using the iOS App).
• The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of our iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.

ANDROID TERMS

The following additional terms and conditions apply with respect to any App that we provide to you designed for use on an Android-powered mobile device (an “Android App”):

• You acknowledge that these Terms are between you and us only, and not with Google, Inc. (“Google”).
• Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
• Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.
• You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android App.

SUBSCRIPTIONS, REGISTRATION AND CANCELLATION

By registering for an account with onWater, you have the option to become a “Subscriber” with access to certain passwordrestricted areas of the Site and certain Services and Materials offered on and through the Site (a “Subscription”). Each Subscription, and the rights and privileges provided to a Subscriber, is personal and non-transferable. All sales and payments of Subscription fees will be in US Dollars.

We offer different Subscription options. We reserve the right to change prices for Subscriptions (but not the price in effect for your then-current Subscription term) at any time, upon notice, and does not provide price protection or refunds in the event of promotions or price decreases. onWater may begin charging for products, content or services that it currently offers for free. onWater will notify you at least 30 days in advance of your auto-renewal if the price of your membership fee has increased.

We will charge you for your first Subscription fee on the date that we process your order for your Subscription (or if you sign-up for a Subscription that includes a free-trial period, we will charge you for your first Subscription fee upon the expiration date of the applicable free-trial period). Once you are charged the first Subscription fee (or if you sign-up for a Subscription that includes a free-trial period, once we have processed your order for your Subscription), you will receive a confirmation e-mail notifying you of your ability to access those Subscription-only portions of, and Materials on, the Site.

TO FACILITATE CONTINUITY OF SERVICE TO YOU, EACH FREE-TRIAL SUBSCRIPTION THAT BECOMES A PAID SUBSCRIPTION, AND EACH PAID SUBSCRIPTION CONTAINS AUTOMATIC RENEWAL TERMS. If you sign up for a membership, your membership will automatically renew at the conclusion of the then-current term unless you turn off autorenewal at least twenty-four (24) hours before the conclusion of the then-current term. Uninstalling the mobile app will not automatically cancel your membership or account or turn off auto-renewal, and you may continue to access the Service and your account after uninstalling the app, such as through the website. If you uninstall the mobile app without canceling your membership or turning off auto-renewal, the recurring charges for your membership will continue. You must cancel your membership or turn off auto-renewal to end recurring charges.

You will be liable for paying any and all applicable sales and use taxes for the purchase of your Subscription based on the mailing address that you provide when you register as a Subscriber, and you authorize onWater to charge you for any such applicable taxes.

PAYMENTS AND FEES

You agree to pay all applicable fees related to your use of the Product and your Subscription which are described fully at https://onwaterapp.com/purchase. We may suspend or terminate your account and/or access if your payment is late and/or your offered payment method (e.g., credit card or PayPal account) cannot be processed. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your particular membership and utilized services.

We understand that you might cancel your account, but please know that we will not necessarily provide any refund(s) and you will be responsible for paying any balance due on the account. Certain refund requests for Subscriptions may be considered by OnWater on a case-by-case basis and granted in sole discretion of OnWater. you agree that we may charge any unpaid fees to your provided payment method and/or send you a bill for such unpaid fees.

If you make an in-app purchase in a the Product, the applicable fee may be denominated in your local currency in the iTunes App Store (http://itunes.apple.com), Google Play Store (https://play.google.com/store/apps) or any other applicable app store through which you obtain the Mobile App (each, an “App Store”). The App Store collects the applicable fee from you on your device. You should consult the App Store to understand its sales terms and determine whether the fee includes all applicable taxes, currency exchange settlements and other charges. You are solely responsible for paying all such taxes, fees and other charges. onWater relies on the App Store to collect fees and to report on the status of accounts. Your access to the Service may be suspended or terminated if you do not make payment on time or in full. In-app purchases are managed by the App Store directly. onWater does not have the ability to manage any aspect of your in-app purchases on your behalf, including, but not limited to, initiating, canceling or refunding purchases.

DISCLAIMER OF WARRANTIES

THE PRODUCT IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH YOU.

WE (AND OUR LICENSORS AND SUPPLIERS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE PRODUCT, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FURTHERMORE, WHILE WE BASE INFORMATION IN THE PRODUCT ON THE MOST UPDATED INFORMATION AVAILABLE TO US, WE ARE NOT RESPONSIBLE FOR THE ACCURACY OF CERTAIN FEATURES, AS FURTHER DESCRIBE BELOW. THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE PRODUCT IS FREE OF PROBLEMS. Without limiting the generality of the foregoing, we make no warranty that this Product will meet your requirements or that the Product will be uninterrupted, timely, secure, or error free or that defects in the Product will be corrected. We make no warranty as to the results that may be obtained from the use of the Product or as to the accuracy or reliability of any information obtained through the Product. No advice or information, whether oral or written, obtained by you through the Product or from us or our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.

ACCURACY OF CERTAIN FEATURES

Property Parcel Boundaries. We provide mapping, land boundaries and land ownership information which serve as a reference to hunters, hikers, fishermen and other people engaging in outdoor activities. WE RECEIVE THIS INFORMATION FROM THIRD PARTY DATA PROVIDERS AND WE ARE NOT RESPONSIBLE FOR ITS ACCURACY IN ANY WAY OR IN REGARDS TO ANY DISPUTE OVER LAND BOUNDARY LINES OR OWNERSHIP INFORMATION. You are solely responsible for using all information contained in the Product at your own risk, and confirming that you are authorized to enter and access any particular geographic area highlighted in the Product.

River or Lake Navigation and/or Access. The onWater polyline is only meant to trace the general course of a river or an outline of a lake. It is not intended to illustrate any navigation routes. It is your responsibility to determine the best navigation route, avoid obstacles and hazards and access any body of water during safe flows.

Fish Measuring Tool – The fish measuring tool utilizes the most modern technology available in the native camera feature of mobile devices. Use of older versions of these mobile devices may result in inaccurate readings. Additionally, onWater is not responsible for the accuracy of any measurement readings as it may be affected by user handling, background motion, motion and angle of the fish and other environmental conditions.

THIRD PARTY LINKS AND EXTERNAL MATERIALS

We may provide links to other websites or resources that may benefit you. You acknowledge and agree that onWater does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). These sites are subject to different terms of use and privacy policies, which you are responsible for reviewing. You further acknowledge and agree that onWater shall not be liable for any damage or loss resulting from or arising out of use of or reliance on any External Materials. onWater is not responsible for accuracy of any phone numbers, web links or content in any External Materials. Nor are we responsible for any third party service provider ceasing to provide services or changing contact information.

EXTERNAL MATERIALS - STATE MAP ACCREDITATION

This map was developed using New Jersey Department of Environmental Protection Geographic Information System digital data, but this secondary product has not been verified by NJDEP and is not state-authorized or endorsed.

USER SUGGESTIONS AND SUBMISSIONS

The Product may contain interactive features, including the ability for users to build their own maps, provide fishing reports, share photos, and create content for others (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 Product.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, 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 acknowledge that any inappropriate User Contributions you have posted may cause us to immediately terminate your account, and that you will not be entitled to a refund if we do so.

You acknowledge that onWater may in its discretion modify or delete your or others’ User Contributions, but is not obligated to do so. If you see a User Contribution that seems inaccurate, please let us know

• Your User Contributions are accurate to the best of your knowledge. You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and
• All of your User Contributions comply with these Terms of Use and do not violate the law or the rights of any third party.
• You are solely responsible for the content, including its legality, reliability, accuracy, and appropriateness, or any User Contributions you submit or contribute
• 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 Website. You agree to indemnify us for any third party claim based on your User Contributions.

MODIFICATIONS AND UPDATES

onWater reserves the right at any time to modify, suspend or discontinue the Service (or any portion thereof) with or without notice, and onWater shall not be liable to you or to any third party for any such modification, suspension or discontinuance; provided, however, that in the event of discontinuance, you will be entitled to receive a pro-rated refund for the unused portion of any active subscription.

onWater may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service (“Updates”). onWater may develop Updates that require installation by you before you continue to access or use the Service. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.

INTELLECTUAL PROPERTY RIGHTS

“OnWater” is a trademark that belongs to us. Other trademarks, names and logos in the Product are the property of their respective owners.

Unless otherwise specified in these Terms, all content within the Product, including the arrangement of them, are our sole property, Copyright © 2020 onWater Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

INTELLECTUAL PROPERTY INFRINGEMENT

We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Site (or any portion thereof) to any user who uses this Site in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Product in violation of someone’s intellectual property rights.

Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of this Site, please provide written notice to our Agent for notice of claims of infringement:contact@onwaterapp.com.

LIMITATION OF LIABILITY

ONWATER AND OUR LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE OR YOUR USE OF THE SITE OR THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ONWATER OR OUR LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED THESE TERMS SHALL NOT BE MORE THAN $100.00.

BINDING ARBITRATION AND CLASS ACTION WAIVER

ALL CLAIMS SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at http://www.adr. org/. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, except that onWater will pay all arbitration administrative or filing fees, including the arbitrator fees (other than arbitrator fees up to the amount of the thenapplicable fee for filing a civil action in federal court in the judicial district where you live in any dispute where you assert a claim against onWater, unless you demonstrate to the arbitrator that you would be entitled to file that civil action in federal court without payment of the then-applicable fee). The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in Denver, Colorado. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

WE EACH AGREE THAT ALL CLAIMS WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT IN DENVER, COLORADO OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN A COURT OF COMPETENT JURISDICTION IN DENVER, COLORADO. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

Notwithstanding anything to the contrary, you and onWater may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth above.

TERMINATION AND SURVIVAL

In the event that you violate the Terms: (a) all rights granted to you under the Terms shall terminate immediately, with or without notice; (b) you must immediately cease using the Service; and (c) onWater, in its sole discretion, may remove and discard your Content. Upon termination of the Terms, all rights granted to you under the Terms shall immediately terminate, but the proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

GOVERNING LAW; INTEGRATION

Colorado state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, we are not waiving our rights. These Terms are the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements about this Site.

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