1. Agreement to Terms.
By using our Website, you agree to be bound by these Terms. If you are accessing and using the Website on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
3. Changes to Terms or Services.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Website or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Additional Terms.
You acknowledge and agree that SWIM may make available through the Website related products and services and that your access to and use of those products and services may be subject to additional terms and conditions.
5. Who May Use the Website?
Eligibility. You may use the Services only if you are capable of forming a binding contract with SWIM and are not barred from using the Services under applicable law.
Registration and Your Information. If you want to use certain features of the Website you’ll have to provide Swim with certain information or create an account (collectively, “Account”). You can do this via the SWIM Website or through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Website (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
7. Content Ownership, Responsibility and Removal.
Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Website. Content includes without limitation User Content.
Our Content Ownership. SWIM does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, SWIM and its licensors exclusively own all right, title and interest in and to the Website and Content, including all associated intellectual property rights. You acknowledge that the Website and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website or Content.
Rights in User Content Granted by You. If you make any User Content available through the Services, you hereby grant to SWIM a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Website and Content to you and to other Account holders.
Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Website, nor any use of your User Content by SWIM on or through the Website, will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Rights in Content Granted by SWIM. Subject to your compliance with these Terms, SWIM grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, copy, display and print the Content solely in connection with your permitted use of the Website and solely for your personal and non-commercial purposes.
8. General Prohibitions and SWIM’s Enforcement Rights.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; or (iii) is fraudulent, false, misleading or deceptive;
- Use, display, mirror or frame the Website or any individual element within the Website, SWIM’s name, any SWIM trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without SWIM’s express written consent;
- Access, tamper with, or use non-public areas of the Website, SWIM’s computer systems, or the technical delivery systems of SWIM’s providers;
- Attempt to probe, scan or test the vulnerability of any SWIM system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SWIM or any of SWIM’s providers or any other third party (including another user) to protect the Website or Content;
- Attempt to access or search the Website or Content or download Content from the Website through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by SWIM or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a SWIM trademark, logo URL or product name without SWIM’s express written consent;
- Use the Website or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Website or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Website or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Website;
- Collect or store any personally identifiable information from the Website from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Website or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Website, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Website. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
9. Links to Third Party Websites or Resources.
The Website may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Website, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 6, 7(a), 7(b), 7(c), and 11-15.
11. WARRANTY DISCLAIMER.
The Website and Content are provided to you on an “AS IS” basis and without warranty of any kind. SWIM DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND CONTENT, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Swim makes no warranty that the Website or Content will meet your requirements, be accessible through any equipment or service used by you, or be available on an uninterrupted, secure or error-free basis. No advice or information obtained from SWIM or elsewhere will create any warranty not expressly stated in these Terms. SWIM will have no liability for any claims, losses or damages caused by Your Content. You acknowledge and agree that there are risks inherent to transmitting information over and storing information on the internet and that we are not responsible for any losses of your data, confidentiality or privacy in connection therewith. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SWIM BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF YOUR USE OF THE WEBSITE OR CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SWIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL SWIM’S AGGREGATE LIABILITY TO YOU UNDER THESE TERMS EXCEED ONE HUNDRED DOLLARS (USD $100).
You and SWIM agree that the foregoing warranty disclaimer and limitation of liability fairly allocate the risks between the parties, that such allocation is an essential element of the basis of the bargain between the parties, and that SWIM would not have entered this Terms without these limitations.
You will indemnify and hold harmless SWIM and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Website or Content, (ii) your User Content, or (iii) your violation of these Terms.
14. Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. You and SWIM each agree that the exclusive jurisdiction for all disputes relating to these terms will be the state and federal courts located in the Northern District of California, and you and SWIM each waive any objection to jurisdiction and venue in such courts.
15. General Terms.
These Terms may only be modified, or any rights under it waived, by a written document executed by both parties. Nothing in these Terms shall not be construed to create a partnership, joint venture, employment or agency relationship between you and SWIM. In the event that any of the provisions of these Terms are held by to be unenforceable by a court or arbitrator, the remaining portions of these Terms will remain in full force and effect. The rights granted in these Terms may not be assigned or transferred by you without the prior written approval of SWIM. If you have any questions about these Terms or the Website, please contact SWIM at firstname.lastname@example.org or by mail at SWIM Inc. 910 Campisi Way, Suite 2E, Campbell, CA 95008