MUD WTR, INC. TERMS OF SERVICE

Last Updated: November, 30, 2022

These Terms of Service (“Terms”) provide the general terms and conditions that govern your access to, use of, and interactions with: (a) the website provided by Mud Wtr, Inc. (“Mud Wtr”, “our”,”we”, or “us”) located at mudwtr.com (the “Website”), (b) any Mud Wtr-controlled social media pages (including on Facebook, Instagram, and Twitter), and/or (c) any content, functionality, and services offered on our through the Website and such Mud Wtr-controlled social media pages, as well as your purchases of any products or services provided by Mud Wtr (collectively, the “Services”).

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONTAIN A MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 16, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT ON A CLASS-WIDE OR CONSOLIDATED BASIS OR BY A JURY TRIAL.

BY CLICKING “I ACCEPT” OR ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

If you have any questions about these Terms or our Services, please contact us at drink@mudwtr.com.

Privacy

For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy at https://privacy.mudwtr.com/privacy-policy

Eligibility

You must be at least 18 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. In addition, you must reside in the United States. 

User Accounts and Account Security

You may need to register for an account to access some or all of our Services (e.g., monthly subscriptions). If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You agree that your account is not transferable and that in the event of your death, incapacity or unavailability, we may terminate any rights to your account.

Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

• Engage in any harassing, threatening, intimidating, predatory or stalking conduct against Mud Wtr personnel;
• Use or attempt to use another user’s account without authorization from that user and Mud Wtr;
• Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
• Solicit others to perform or participate in any unlawful acts;
• Submit false or misleading information;
• Upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet;
• Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; 
• Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; 
• Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
• Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
• Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; 
• Develop or use any applications that interact with our Services without our prior written consent;
• Send or distribute spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes to Mud Wtr or other users;
• Bypass or ignore instructions contained in our robots.txt file; or
• Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

Enforcement of this Section 4 is solely at Mud Wtr’s discretion, and failure to enforce this Section 4 in some instances does not constitute a waiver of our right to enforce it in other instances.  In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.  We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Mud Wtr or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and will violate our intellectual property rights.

Trademarks

Mud Wtr, MUD\MRKT, MUD\HUT, MUD, and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Mud Wtr and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. 

Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, reviews, suggestions, ideas, original or creative materials or other information about Mud Wtr or our Services (collectively, “Feedback”). You explicitly grant us and our service providers, and each of their and our respective licensees, successors, and assigns a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from the Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Mud Wtr’s sole discretion. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in the Feedback. You understand that Mud Wtr may treat Feedback as nonconfidential. We shall have no responsibility to evaluate, use or compensate you for any Feedback. We do not guarantee that other users or third parties will not use the Feedback that you post. You may be able to remove your Feedback by specifically deleting it, but we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Feedback. Any Feedback, whether publicly posted or privately transmitted, is the sole responsibility of the person who posted such Feedback.  By posting Feedback, you represent and warrant that: (a) you are not a minor, (b) you own (or have all rights necessary to grant Mud Wtr the license above to) all the Feedback you post, and that Mud Wtr will not need to obtain licenses from any third party or pay royalties to any third party to use such Feedback, and (c) all of your Feedback does and will comply with these Terms and any content standards stated herein.

We do not automatically publish Feedback on the Website, and we may, without obligation, review Feedback before it is posted. We assume no liability or responsibility to anyone for any posted Feedback. We reserve the right to: (a) remove or refuse to post any Feedback for any or no reason in our sole discretion, including Feedback that (i) is in violation of the “Prohibited Conduct and Content” section of these Terms, (ii) is not appropriate due to regulatory concerns, (iii) is a review that is not related or does not correspond to the applicable product or service, or (iv) makes incorrect or misleading claims about our Services; (b) take any action with respect to any Feedback that we deem necessary or appropriate in our sole discretion; (c) disclose your identity or other information about you to any third party who claims that Feedback posted by you violates their rights, including their intellectual property rights or their right to privacy; and (d) take appropriate legal action for any illegal or unauthorized use of the Services.

Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Mud Wtr does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

SMS, MMS, and Other Text Message Terms and Conditions

Certain of our Services may allow you to receive SMS, MMS or other text message notifications (each, a “Text Message”). To the extent you voluntarily opt to have Text Messages sent directly to your mobile phone from us (or through our third-party vendors) concerning the marketing, promotion, payment, customer support, delivery (including order confirmations, tracking information, and shipping updates via email), and other transactional-related messages including checkout reminders (the “Program”), the following terms apply. For clarity, the Program is one of our Services.

User Opt In

You agree to receive recurring automated promotional and personalized marketing Text Messages (e.g., cart reminders) from us, including Text Messages that may be sent using an automatic telephone dialing system, to the mobile number you provided when signing up, or to any other number that you designate. By providing your mobile number, you represent and warrant that you are providing your own mobile number, not someone else’s mobile number, and that you are a legally authorized user of such mobile number. You agree that if you get a new mobile number, you will need to sign up for the Program with your new mobile number. Consent to receive automated marketing Text Messages is not a condition of any purchase. While you consent to receive Text Messages sent using an automatic telephone dialing system, the foregoing shall not be interpreted to suggest or imply that any or all of our Text Messages are sent using an automatic telephone dialing system.

User Opt Out

If you do not wish to continue participating in the Program or no longer wish to receive Text Messages, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any Text Message from us in order to opt out of the Program. You may receive an additional Text Message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our Text Message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that we will have no liability for failing to honor such improper requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out of the Program.

Text Message Frequency and Costs

We do not charge for the Program, but you are responsible for all charges and fees associated with sending and receiving Text Messages imposed by your wireless provider. Text Message and data rates may apply. You are solely responsible for all charges related to Text Messages, including charges from your wireless provider. You agree to receive Text Messages periodically at our discretion. Daily, weekly, and monthly Text Message frequency will vary. We reserve the right to alter the frequency of Text Messages sent at any time, so as to increase or decrease the total number of sent Text Messages.

Support Instructions

For support regarding the Program, text “HELP” to the number from which you receive Text Messages or email us at drink@mudwtr.com. Please note that the use of this email address is not an acceptable method of opting out of the Program. We may change any short code or telephone number we use to operate the Program at any time and will notify you of these changes. You acknowledge that any Text Messages, including any opt out or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such Text Messages. Not all mobile devices or handsets may be supported, and Text Messages may not be deliverable in all areas. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Prohibited Content; Indemnification

In addition to the restrictions set forth in Section 4 above, you acknowledge and agree to not send us Text Messages containing: (a) content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act or the Health Information Technology for Economic and Clinical Health Act; and (b) any other content that is prohibited by applicable law. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE NUMBER YOU PROVIDED.

Ordering, Delivery, Payments, and Billing

Paid Services and Terms of Sale

Certain of our Services, including the purchase of any products or subscriptions (such as monthly MUD plans) offered by us, may be subject to payments now or in the future (the “Paid Services”), which in certain cases may include recurring, automatically renewing payment obligations (as further described in the “Auto-Renewals and Recurring Billing for Monthly MUD Plans and Other Subscription Services” section below). Please see our Help / FAQ for a description of the current Paid Services, our shipping terms, and cancellation and refund policies. Please note that any additional payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.

We reserve the right to change the prices and available Paid Services at any time.  Quantities of some products may be limited, and stock cannot always be guaranteed. Products offered for sale by us are for sale only in the United States and all prices are quoted in U.S. dollars.  We may occasionally make errors in the stated prices, and we reserve the right to correct errors (whether by changing information on the Website or by informing you of the error and giving you an opportunity to cancel your order) or to update Paid Services information at any time without notice.  

You may place an order for Paid Services at any time (subject to any planned or unplanned downtime). You may check and correct any input errors in your order up until the point at which you submit your order to us by clicking the “Purchase” button on the checkout page. An order submitted by you constitutes a legally binding offer given by you to us to purchase the Paid Services specified in that order, subject to these Terms, at the price and on the terms stated when you sign up or place your order. All orders are subject to acceptance by us, and we reserve the right to refuse or limit any orders or limit any quantities. We will not be liable if a product is unavailable or if shipment is delayed. All orders are non-cancelable; we may grant or deny cancellation requests in our sole and absolute discretion. We reserve the right to provide substantially similar products to fulfill your order.  

Your order will not be considered accepted until we have received payment of the purchase price of your order. We may send an acknowledgment of our receipt of your order to the email address you provide, after your payment for the order has been processed, so that you may print the information for your records. Unless you have requested your order be shipped to Canada or unless otherwise stated at the time you place your order, title and risk of loss pass to you upon delivery to the common carrier for shipment, provided full payment of all sums due in respect of the product(s), including any delivery charges, has been received. By purchasing products on the Website for shipment, you are asking us to engage a common carrier to deliver your order. In doing so, we are providing a service to and acting on behalf of you. We reserve the right to choose any and all procedures, packaging and the common carrier of sold products. We may not be able to have your order shipped to a post office box, to certain addresses or on certain days. We reserve the right to ship your order in multiple boxes or shipments.

Our products and services, including, without limitation, our Paid Services, are for your personal, non-commercial use, and once delivered to you may not be resold, redistributed, exported or used for any other commercial purpose. The rights you have under these Terms are personal to you and are non-transferable.

We do not allow returns or substitutions of products.  All sales are final.

Shipping to CanadaIf you have placed an order for Paid Services to be delivered to a location in Canada, the following additional terms apply.

Delivery of your order occurs, and title and risk of loss pass to you, at the time such Paid Services are handed off to the courier from the warehouse from which your order ships. Orders shipped to Canada may be subject to customs duties and/or import taxes. Shipping charges and applicable customs duties and taxes are your sole responsibility.  By ordering Paid Services from our Website, you authorize the customs broker selected by us or our shipping agent to act as your agent to transact business with the Canada Border Services Agency to clear merchandise and to pay duties and taxes on your behalf.

Shipping to Australia

All Australian orders are subject to local fees, taxes, duties, and customs. If during checkout duties and taxes are requested, the shipping service to that country is Delivery Duties Paid, meaning all import and customs duties and taxes are required to be prepaid at the time of checkout, and the recipient will not receive an additional bill.

When you place an order with MudWtr, Inc., you authorize our customs broker or our shipping agent to act as your agent with Australia customs, border and revenue bureaus to clear merchandise and process all duties and taxes.

Once payment for goods, shipment, and if any applicable duties and taxes has been made to MudWtr, the order will be fulfilled from our warehouse, at which time the first scan from a carrier will initiate ownership change of the goods from MUD\WTR to you.

Billing

We use third-party payment processors, such as Stripe, PayPal, Squarespace, and Shopify (collectively, the “Payment Processor”), to bill you through a payment account linked to your account on the Services (your “Billing Account”) or through the guest checkout feature on the Services for the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms.  More information is available in our Privacy Policy.  We are not responsible for errors by the Payment Processor.  By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

Payment Method

The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account or through the guest checkout feature upon demand.

Auto-Renewals and Recurring Billing for Monthly MUD Plans and Other Subscription Services

Some of the Paid Services, such as the purchase of MUD products, may consist of an initial period for which there is a one-time charge or a Trial Offer (as defined below), followed by recurring periodic charges as agreed to by you when you sign up for such auto-replacing products (“Subscription Services”). The Subscription Services give you the ability to specify how regularly you would like to order any auto-replacing products. Unless you opt out of a Subscription Service, which can be done via the methods described below, the Subscription Services that you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term you originally selected, at the then-current non-promotional rate. More information on Subscription Services can be found at our Help / FAQ page. By choosing a Subscription Service, you acknowledge that such Subscription Service has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to the effective date of cancellation of such Subscription Service. All recurring payments relating to Subscription Services are fully earned upon payment.

To change or cancel your Subscription Services at any time, go to your account or email us at drink@mudwtr.com. If you terminate a Subscription Service, your subscription will not be renewed after your then-current subscription term expires.

WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, OR TO CHANGE YOUR PAYMENT METHOD OR SUBSCRIPTION SERVICES, GO TO YOUR ACCOUNT, OR CONTACT US AT drink@mudwtr.com.

Current Information Required

You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date), and you must promptly notify us or our Payment Processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made on your account. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.

Change in Amount Authorized

If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. If, on receipt of such notice, you do not wish to continue with the purchase, you may cancel at any time before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

Reaffirmation of Authorization

Your non-termination or continued use of a Paid Service (including, without limitation, Subscription Services) reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage or as otherwise described when you initially selected to use the Paid Service.

Free Trials and Other Promotions

Any free trial or other promotion that provides access to a Paid Service (a “Trial Offer”) must be used within the specified time of the Trial Offer. You will be required to have a valid Payment Method on file in order to initiate a Trial Offer. You must stop using a Paid Service before the end of the Trial Offer period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the Trial Offer period and are inadvertently charged for a Paid Service, please contact us at drink@mudwtr.com. Trial Offers are one-time only for new customers and are limited to one per household. Additional terms and limitations may apply and will be more fully explained at the time you sign up for the Trial Offer. Any such additional terms and limitations are deemed part of these Terms.

Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Mud Wtr and our officers, directors, agents, partners and employees (individually and collectively, the “Mud Wtr Parties”) from and against any losses, liabilities, claims, demands, damages, settlements, expenses and costs (including attorneys’ fees and court costs) (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your conduct in connection with the Services; and (f) your violation of any law or rights of a third party. You agree to promptly notify the Mud Wtr Parties of any third-party Claims, cooperate with the Mud Wtr Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Mud Wtr Parties will have control of the defense or settlement, at Mud Wtr’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Mud Wtr or the other Mud Wtr Parties.

Disclaimers

Your use of our Services and any products is at your sole risk. Except as otherwise provided in a writing by us, our Services, any product provided thereunder, and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Mud Wtr does not represent or warrant that our Services, products, or any results therefrom are or will be accurate, complete, reliable, current or error-free. Without limiting the foregoing, we and our officers, directors, employees, agents, suppliers, partners and content providers do not warrant that: (i) the Services or products will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Services is free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements. You assume the entire risk as to the quality and performance of the Services.  Some jurisdictions limit or do not allow the disclaimer of implied or other warranties, so the above disclaimers may not apply to you. 

Limitation of Liability

To the fullest extent permitted by applicable law, Mud Wtr and the other Mud Wtr Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability (where not prohibited by law), warranty, or otherwise—for any indirect, consequential, exemplary (where not prohibited by law), incidental, punitive (where not prohibited by law), or special damages or lost profits, even if Mud Wtr or the other Mud Wtr Parties have been advised of the possibility of such damages.

The total liability of Mud Wtr and the other Mud Wtr Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Services.

The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Mud Wtr or the other Mud Wtr Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

Release

To the fullest extent permitted by applicable law, you release Mud Wtr and the other Mud Wtr Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Mud Wtr and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial. 

No Representative Actions. You and Mud Wtr agree that any dispute arising out of or related to these Terms or our Services is personal to you and Mud Wtr and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes in which you or Mud Wtr seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Mud Wtr seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Mud Wtr waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Mud Wtr or relating in any way to the Services, you agree to first contact Mud Wtr and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Mud Wtr by email at Mud Wtr, Inc. or by certified mail addressed to ATTN: Legal, 2515 Main Street, Santa Monica, California 90405. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Mud Wtr cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Los Angeles, California or may be conducted telephonically or via video conference for disputes alleging damages less than $1,000, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and Mud Wtr agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. 

The arbitrator, Mud Wtr, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

Both parties will be responsible for their respective JAMS fees and costs. You and Mud Wtr agree that the state or federal courts of the State of California and the United States sitting in Los Angeles, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 

Any claim arising out of or related to these Terms or our Services must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that you and Mud Wtr will not have the right to assert the claim.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by emailing us at drink@mudwtr.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17.

If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable. 

Governing Law and Venue

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Los Angeles, California.

Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your which account. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

Miscellaneous

These Terms constitute the entire agreement between you and Mud Wtr relating to your access to and use of our Services. Notwithstanding any other provisions of these Terms, Sections 4, 7, 9, 11, 12, 13, 14, 16, 17, and 20 survive any expiration or termination of these Terms. The failure of Mud Wtr to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or the Services, in whole or in part, without your prior written consent. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.