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8. WARRANTY DISCLAIMERS
(a) THE WARRANTY FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.
(b) THE SERVICES (I.E., THE SITE, WEB APP, MOBILE APPS AND MYENERGY.COM) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”
AND TRUTANKLESS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-
INFRINGEMENT.
(c) TRUTANKLESS AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL
MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM TRUTANKLESS OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
9. LIMITATION OF LIABILITY
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under
applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) TRUTANKLESS
BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS,
ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF TRUTANKLESS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF
SUCH DAMAGES, AND (B) TRUTANKLESS’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER
IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TRUTANKLESS OR TRUTANKLESS’S AUTHORIZED RESELLER
FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY
THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. TRUTANKLESS DISCLAIMS ALL LIABILITY OF ANY KIND OF TRUTANKLESS’S LICENSORS AND
SUPPLIERS.
10. DISPUTES AND ARBITRATION
(a) Contact trutankless First. If a dispute arises between you and trutankless, our goal is to learn about and address your concerns. You agree that you
will notify trutankless about any dispute you have with trutankless regarding these Terms by contacting trutankless.
(b) Binding Arbitration. You and trutankless agree, subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), to submit
any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding
arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and
subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial
authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising
out of or relating to your use of the Service. Subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim
made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute,
fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they
qualify for hearing by such a court.
(c) Arbitration Procedures. You must first present any claim or dispute to us by contacting trutankless to allow us an opportunity to resolve the dispute.
You may request arbitration if your claim or dispute cannot be resolved within 60 days aer presenting the claim or dispute to trutankless. trutankless
may request arbitration against you at any time aer it has notified you of a claim or dispute in accordance with clause 11(f) (Notifications). The
arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association
as modified by this agreement. The place of any arbitration will be Phoenix, Arizona, USA, and will be conducted in the English language. Claims
will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation
or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s
actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and
may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you,
nor trutankless nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes
of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any
portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and eect.
36 Bollente trutankless® Series Water Heaters www.trutankless.com
(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or
consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not
limited to, as a private attorney general).
(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and trutankless. Each party will bear the
expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(f) YOU MUST CONTACT TRUTANKLESS WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR
YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
This arbitration clause shall survive termination of these Terms.
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