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Terms and Conditions

Last Updated and Effective as of: February 23, 2021

INTRODUCTION 

Welcome to the Waterside Shops website, located at https://www.watersideshops.com (“Website”).  This website is owned and operated by The Forbes Company and its affiliates listed in the “Affiliated Companies” section below (collectively, “we”, “us,” “our” or “Company”).

THESE TERMS AND CONDITIONS

Your access and use of the Website is subject to the following terms and conditions (“Terms and Conditions”) and all applicable laws.  By accessing or using any part of the Website, you accept, without limitation or qualification, these Terms and Conditions.  If you do not agree with all of the Terms and Conditions set forth below, you may not use any portion of the Website.

Certain portions of the Website, or tools, features, services, products or software that you access, use, purchase or download from the Website may be subject to additional terms and conditions, which are posted within those areas.  In addition, some areas of the Website may be hosted or provided by our co-branded sites, retailers, partners or third-party host or service providers and are subject to additional terms and conditions, which are posted within those areas or on such third parties’ websites.

THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.

USAGE OF THE WEBSITE

Accessibility: If you are having any trouble accessing these Terms and Conditions or the Website, please review our Accessibility Guidelines and/or contact us by email at info@watersideshops.com or by telephone at 239-598-1605 and ask for Anne Flemming, identifying the website in question.  Our hours of operations are Monday – Friday, 9AM to 5PM Eastern.

Authorized Use of Website:  This Website is provided for your personal and non-commercial use and for informational purposes only. Any other use of the Website requires the prior written consent of Company. By using the Website, you further represent and warrant that you are located inside the U.S. and agree to be bound by U.S. laws. This Website is intended for users situated in the United States. We currently do not offer goods and services to the EEA or in other foreign jurisdictions.

Unauthorized Use of Website:  You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Website. Further, you may not use any such automated means to manipulate the Website, such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the Website or any other user’s use of the Website, including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing” the Website, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms and Conditions. You may not frame portions of the Website within another Website. You may not resell use of, or access to, the Website to any third party without our prior written consent.

Privacy Policy:  Use of the Website is also governed by our Privacy Policy, which is incorporated herein by reference. To understand what information we collect from you and how we use that information, please read our Privacy Policy.

International Access:  The Website is provided from the United States and all servers that make it available reside in the United States.  The laws of other countries may differ regarding the access and use of the Service.  We make no representations regarding the legality of the Website in any other country and it is your responsibility to ensure that your use complies with all applicable laws outside of the United States. 

OWNERSHIP

Proprietary Rights: Company is the owner of or otherwise licensed to use all parts of the Website, including all copy, software, graphics, designs and all copyrights, trademarks, service marks, trade names, logos, and other intellectual property or proprietary rights contained therein. Some materials on the Website belong to third parties who have authorized Company to display the materials, such as certain third party licensors.  By using the Service, you agree not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials.  Except as expressly set forth in these Terms and Conditions, no license is granted to you and no rights are conveyed by virtue of accessing or using the Website.  All rights not granted under these Terms and Conditions are reserved by Company.

No Ideas Accepted: We do not accept any unsolicited ideas to this Website from outside the company including without limitation suggestions about advertising or promotions, merchandising of any products, additions to our services, or changes in methods of doing business.  We may already be working on or may in the future work on a similar idea. This policy eliminates concerns about ownership of such ideas. If, notwithstanding this policy, you submit an unsolicited idea to this Website, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that we shall exclusively own all known or hereafter existing rights to the idea everywhere in the world, and that such idea is hereby irrevocably assigned to us.  Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and or to the extent necessary for Company to utilize your submission, you hereby grant Company an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation.

USER GENERATED CONTENT

Content Posted By You:  Certain pages on the Website may allow you to post text, comments, videos, captions, information or other content (collectively, “Content”). Unless otherwise specified, you may only post Content to the Website if you are eighteen (18) years of age or older.  All Content must be in the form and format required by Company. Our Website acts as a passive conduit for any and all communication and/or distribution of information, and we do not control the Content. We cannot and will not evaluate and we are not responsible for the accuracy, reliability, completeness, veracity or suitability of any Content or for verifying the identity of the submitting user of our Website.

You may only post Content that you created or which the owner of the Content has given you permission to post.  If Content depicts any person other than yourself, you must have permission from that person or, if that person is a minor, permission from that person’s parent or legal guardian, before you post the Content. You may be required to provide proof of such permission to Company.  You may not post or distribute Content that is illegal or that violates these Terms and Conditions.  By posting or distributing Content to the Website, you represent and warrant that (i) you own all the rights to the Content or are authorized to use and distribute the Content to the Website; and (ii) the Content does not and will not infringe any intellectual property, privacy, publicity or any other third-party right nor violate any law or regulation.  Further, by submitting or posting Content to the Website, you grant Company the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt, and promote this Content in any medium now known or hereafter invented, in perpetuity.  Once you submit or post Content to the Website, Company does not need to give you any further right to inspect or approve uses of such Content or to compensate you for any such uses.  Company owns all right, title, and interest in any compilation, collective work, or other derivative work created by Company using or incorporating Content posted to the Website. You are solely responsible for anything you may post on the Website and the consequences of posting anything on the Website.

Digital Millennium Copyright Act (“DMCA”) Notice: Materials may be made available via the Website by users and other third parties not within our control. We are under no obligation to, and do not, scan content posted on the Website for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Website.

If you believe any materials on the Website infringe a copyright, you should provide us with written notice that at a minimum contains:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows, identifying the website in question:

Waterside Shops

Anne Flemming

5415 Tamiami Trail N

Naples, FL 34108

afleming@watersideshops.com

Prohibited Activities:  Company expects all of its users to be respectful of other people.  The following is a partial list of the types of conduct that are illegal or prohibited on the Website or while using the Website. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, engages in any of the prohibited activities.  Without limitation, you agree that you will not post or transmit to other users anything that contains Content that:

  • is defamatory, abusive, obscene, profane or offensive, or contains “masked” profanity (e.g., F*@&);
  • infringes or violates another party’s intellectual property, privacy, publicity or third party rights (such as articles, music, audio, videos, photos or other materials for which you do not have written authority from the owner of such materials to post on the Website);
  • is threatening, harassing or that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  • promotes or encourages violence, abuse cruelty to animals, use of illegal drugs or alcohol, or other dangerous behavior;
  • is inaccurate, false or misleading in any way, or constitutes impersonation of another person;
  • is illegal or promotes any illegal activities;
  • promotes illegal or unauthorized copying of another person’s copyrighted work or provides information to circumvent security measures;
  • contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
  • contains any advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.

Company is under no obligation to screen or monitor Content, but may review Content from time to time at its sole discretion.  Company will make all determinations as to what Content is appropriate in its sole discretion.  Company may edit or remove any Content at any time without notice.

THIRD PARTY MATERIALS

Third Party Content: Under no circumstances will Company be liable in any way for any content or materials of any third parties, such as any news and information, commentary, interactive tools, research or data (“Third Party Content”), including, but not limited to, for any errors or omissions in any Third Party Content, or for any loss or damage of any kind incurred as a result of the use of any such Third Party Content.  You acknowledge that Company does not pre-screen content, but that Company and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Third Party Content that is available via the Website. Without limiting the foregoing, Company and its designees will have the right to remove any Third Party Content that violates these Terms and Conditions or is deemed by Company, in its sole discretion, to be otherwise objectionable.  We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Third Party Content or communications posted on the Website or endorse any opinions expressed therein. You understand that by using the Website, you may be exposed to Third Party Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, materials that have been mislabeled or are otherwise deceptive. Under no circumstances will Company be liable in any way for any Third Party Content, including, but not limited to, any errors or omissions in any Third Party Content, or any loss or damage of any kind incurred as a result of the use of any Third Party Content posted, emailed, transmitted or otherwise made available on the Website.

Third Party Links; Retailers: This Website may contain links to other websites, apps, materials and information not maintained by us. Other websites, apps, materials and information may also reference or link to our Website. We encourage you to be aware when you leave our Website and to read the terms and conditions and privacy statements of each and every website or app that you visit.  We are not responsible for the practices or the content of other websites and apps. Further, the Company is not a retailer and does not sell any products or services on the Website.  If you visit a Company property and then purchase products from a retailer’s website, please carefully read the policies and terms of that retailer before making your purchase.  Company does not take any responsibility for the acts and omissions of any retailers or your purchase of products from the same.

Social Networking Services:  The Website may integrate with social networking services.  You understand that we do not control such services and are not liable for the manner in which they operate.  While we may provide you with the ability to use such services in connection with our Website, we are doing so as an accommodation and, like you, are relying upon those services to operate properly and fairly.

WARRANTIES

No Warranties:  WHILE COMPANY USES REASONABLE EFFORTS TO INCLUDE UP-TO-DATE INFORMATION ON THE WEBSITE, EXCEPT FOR THE EXPRESS WARRANTIES STATED ON OUR WEBSITE, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION ON THE WEBSITE. TO THE FULLEST EXTENT PERMITTED BY LAW, YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, INCLUDING ALL CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE WEBSITE, IS PROVIDED “AS IS” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER CONCERNING THE CONTENT ON THE WEBSITE. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.

Waiver By California Residents:  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

INDEMNIFICATION & LIMITATION OF LIABILITY

Indemnification:  You agree to indemnify, defend and hold harmless Company, its employees, directors, officers, agents, business partners, affiliates (including affiliated companies), contractors, properties, retailers and representatives from and against any and all claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to (i) your use of the Website, (ii) any breach by you of any of these Terms and Conditions, or (iii) any negligence, willful misconduct or violation of applicable law.

LIMITATION OF LIABILITY: IN NO EVENT WILL COMPANY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DIRECT DAMAGES EXCEEDING ONE HUNDRED UNITED STATES DOLLARS.

DISPUTE RESOLUTION

Governing Law; Dispute Resolution; Arbitration:   The laws of the State of Michigan shall govern these Terms and Conditions. While we will make reasonable efforts to resolve any disagreements you may have with Company, if these efforts fail you agree that all claims, disputes or controversies against Company arising out of these Terms and Conditions, or the purchase of any products or services (“Claims”) shall be exclusively submitted to binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Company agree in writing, and the arbitrator shall apply Michigan law consistent with the Federal Arbitration Act. You may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association at using the contact information noted below.

American Arbitration Association

Website: www.adr.org

A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms and Conditions, in which case these Terms and Conditions will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator’s award is final and binding on the parties.

We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is determined by the court to be outside its jurisdiction, the parties agree that the dispute shall then be submitted to arbitration.

Class Action Waiver: YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. CLAIMS AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION ARE SUBJECT TO ARBITRATION ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS, AND THE ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.

Time Bar: ANY CLAIM YOU HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE OF THE CLAIM.

MISCELLANEOUS

Changes:  All information posted on the Website is subject to change at any time.  In addition, these Terms and Conditions may be changed at any time. We will make such changes by posting them on the Website. You should check the Website for such changes frequently.  Your continued access of the Website after such changes demonstrates your acceptance of those changes.

Severability:  If any part of these Terms and Conditions shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of these Terms and Conditions, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

Waiver; Remedies:  The failure of Company to partially or fully exercise any rights or the waiver of Company of any breach of these Terms and Conditions by you shall not prevent a subsequent exercise of such right by Company or be deemed a waiver by Company of any subsequent breach by you of the same or any other term of these Terms and Conditions.  The rights and remedies of Company under these Terms and Conditions and any other applicable agreement between you and Company shall be cumulative, and the exercise of any such right or remedy shall not limit Company’s right to exercise any other right or remedy.

Questions:  Should you have any questions regarding these Terms and Conditions you may contact us at info@watersideshops.com.

AFFILIATED COMPANIES

Affiliated Companies: The following companies are affiliates of The Forbes Company LLC:

  • Forbes – Cohen Florida Properties LP dba The Gardens Mall
  • Forbes Family-Waterside LLC
  • Forbes Properties – Orlando LLC
  • Forbes Taubman Orlando, LLC dba Mall at Millenia
  • Forbes Waterside Associates, LLC
  • Forbes-Cohen Development Co., LLC
  • Frankel/Forbes-Cohen Associates, A MI Co-Partnership
  • Somerset Collection Charitable Foundation
  • Somerset Collection GP, Inc.
  • Somerset Collection Limited Partnership dba Somerset Collection – Mall
  • Somerset Mall Merchants Association, Inc.
  • The Garden Promotional Fund, Inc.
  • The Gardens Venture, LLC
  • The Mall at Millenia Promotional Fund, Inc.
  • Waterside at Pelican Bay, LLC
  • Waterside Shops LLC dba Waterside Shops at Pelican Bay
  • Waterside Shops Promotional Fund, Inc.
  • F-T Waterside, LLC
  • Forbes Group Waterside, LLC
  • MWC HS Retail LLC
  • Forbes Family HSR LLC
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