Please read carefully the following provisions of these Terms of Use and Sale (these “Terms”). This is a legal agreement between you and Swimmo Inc., a Delaware corporation (“Swimmo” or “We”) regarding the use of the use of our online and/or mobile services, website (collectively, the “Swimmo Service”), and the purchases of Swimmo products through our online and/or mobile services or website. By using the Swimmo Service in any way, including making purchases, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS, AS WELL AS TO COMPLY WITH PRIVACY POLICY. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS.

Swimmo reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of the Swimmo Service following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms, Swimmo grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Swimmo Service.

General Provisions

We try to ensure, but do not guarantee in any way, that information provided on the Swimmo Service is complete, accurate and up to date. As such, we make no representation as to the completeness, accuracy or correctness of any information on Swimmo Service. All features, content, specifications, products, colors and prices of products and services described or depicted on Swimmo Service are subject to change at any time without notice. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors. While we usually confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice and in our sole and absolute discretion, to limit the order quantity on any product or service, to refuse service to any customer and/or to refuse access to the Swimmo Service by any visitor or customer. We also may require verification of information (such as payment information) prior to the acceptance and/or shipment of any order.

General Use Provisions

All contents included in Swimmo Service, including (but not limited to) all written material, images, photos and code (“Content”), are protected under international copyright and trademark laws. You may not copy, reproduce, modify, republish, transmit or distribute any material from Swimmo Service without express written permission. It is expected that all users of Swimmo Service will comply with applicable copyright laws. However, if we are notified of claimed copyright infringement, or otherwise become aware of facts and circumstances from which infringement is apparent, we will respond expeditiously by removing or disabling access to the material that is claimed to be infringing or to be the subject of infringing activity.

Except where expressly provided otherwise by Swimmo, nothing on the Swimmo Service shall be construed to confer any license or ownership right in or to the Content, under any of Swimmo’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses.

Any unauthorized use of any Content contained on the Swimmo Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes. It is your obligation to comply with all applicable state, federal and international laws. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. You agree to accept responsibility for all activities that occur under your account or password.

License

We grant you a limited, non-exclusive, nontransferable license to use Swimmo Service according to these Terms of Use. We reserve the right to modify or discontinue, temporarily or permanently, Swimmo Service for any reason, at our sole discretion, with or without notice to you. Notwithstanding any provisions of these Terms of Use, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use Swimmo Service, and to block or prevent future access to and use of Swimmo Service for any reason or no reason. Upon termination, these Terms will still apply; in particular, you remain personally liable for any orders that you place or charges that you incur prior to termination.

Links to Third Party Sites

We may choose to provide links or references on Swimmo Service to third-party web sites, information or services solely as a convenience to our users (“Reference Sites“). Swimmo does not endorse any such Reference Sites. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk. We encourage you to be aware of when you leave Swimmo Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit. In addition, your correspondence or business dealings with advertisers found on or through Swimmo Service are solely between you and such advertiser. We will not be liable for the unreliability or inaccuracy of any information obtained through those Reference Sites.

Licenses from You

You grant to Swimmo and its Third Party Providers the non-exclusive, worldwide right to use, copy, transmit and display any data, information, Content or other Materials, provided to Swimmo by you in the course of accessing and/or using the Website. Notwithstanding the foregoing, Swimmo’s obligations regarding identification and other information concerning your personal information shall be governed by the terms of the Privacy Policy as available on www.swimmo.com. The terms of the Privacy Policy are expressly incorporated herein as though set forth in full.

Limits of Your Use / Compliance with Laws

You must use Swimmo Service only for a lawful purpose. You must not take any action that may compromise the security of Swimmo Service, make Swimmo Service inaccessible to others, or cause damage to Swimmo Service. All of this, including its organization, selection, and arrangement, as well as various software or programming within or related to Swimmo Service, belong to us. No content from Swimmo Service may be modified, copied, reproduced, republished, downloaded, posted, displayed, transmitted, performed, licensed, used to make a derivative work, transferred, sold or distributed without our prior written consent.

Purchases

Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Website, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms and the terms posted for or applicable to a specific portion of the Swimmo Service or for any service offered on or through the Swimmo Service, the latter terms shall control with respect to your use of that portion of the Swimmo Service or the specific service.

Swimmo may make changes to any products or services offered through the Swimmo Service, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Swimmo Service with respect to products and services may be out of date, and Swimmo makes no commitment to update the materials on the Swimmo Service with respect to such products and services.

You agree to pay for all products and services which you purchase through the Swimmo Service and for any additional amounts (including any taxes, as applicable) as may be accrued (collectively “Fees”).

Pre orders may be placed for products and services sold and to be sold through the Swimmo Service. By pre-ordering a product or service on the Website, you understand that you will be charged for the full amount of the product at the time the pre-order is placed. While Swimmo endeavors to meet all its deadlines and to provide the product at the estimated time, delays inevitably may arise. As a result, in the event that a delay arises and the estimated shipment and/or release of the product is not met, Swimmo is not responsible for any damages that may occur due to the delay, nor shall it be obligated to provide any discounts, refunds or credits due to any such delays.

Billing and Payment

To the extent you purchase any goods and/or services from Swimmo, you agree to pay for all goods and services ordered from Swimmo except as set forth in a writing signed by an authorized representative of Swimmo. You will provide Swimmo with valid and updated credit card or approved purchase order information and with Swimmo and accurate billing and contact information. If you provide credit card or other authorized payment method information to Swimmo, you authorize Swimmo, or a credit card processor of its choosing to bill such credit card or to make such charges as applicable. If Swimmo, in its sole and absolute discretion, permits you to make payment using a method other than a credit card or other authorized payment method, Swimmo will invoice you at, or within a reasonable period of, the time of the purchase request. All amounts invoiced hereunder shall be due within thirty (30) days of the date of the invoice.

Limitation of Liability

TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SWIMMO EXCEED $200.00. IN NO EVENT SHALL SWIMMO OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ACCESSING OR USE OF, OR INABILITY TO USE, THE WEBSITE AND THE SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO THE DOWNLOADING OF ANY MATERIALS, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF YOUR BREACH, OR RELATED TO YOUR INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED “INDEMNITIES”.

Disclaimer of Warranties

EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SWIMMO, THE SWIMMO SERVICE IS PROVIDED “AS IS,” AND IS FOR USE AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, Swimmo HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE SWIMMO SERVICE AND THE GOODS AND SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. SWIMMO MAKES NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SWIMMO SERVICE AND THE GOODS, SERVICES ASSOCIATED WITH THE SWIMMO SERVICE, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE SWIMMO SERVICE AND/OR THE GOODS, SERVICES ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SWIMMO DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SWIMMO SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SWIMMO SERVICE WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, OR THE SYSTEMS THAT MAKE THE SWIMMO SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT SWIMMO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SWIMMO SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SWIMMO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SWIMMO, THE SWIMMO SERVICE AND THE GOODS, SERVICES ASSOCIATED THEREWITH ARE PROVIDED TO YOU ON AN “AS IS” BASIS. Swimmo EXPRESSLY DISCLAIMS ANY WARRANTY RELATED TO THE QUALITY OF GOODS AND/OR SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE SWIMMO SERVICE.

Indemnities

You agree that you are personally responsible for your use and behavior while using Swimmo Service. You agree to indemnify, defend and hold harmless Swimmo, its personnel, subsidiaries, affiliated companies, franchisees, licensees, joint ventures, business partners, licensors, suppliers, employees, agents, and hosts of Swimmo Service and third-party information providers from and against all claims, liabilities, losses, expenses, injury or damage to persons or property, money damages and costs (including but not limited to direct, incidental, consequential, exemplary, and indirect damages), reasonable attorneys’ fees and costs of government inquiry or investigation, resulting from or arising out of your visit, use, misuse, inability to use or interruption in service of Swimmo Service or any violation by you of these Terms or of law.

Feedback

We will treat any feedback or suggestions you provide to us (“Feedback”) as non-confidential and non-proprietary to you. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to Swimmo any information or ideas that you consider to be confidential or proprietary. You understand and acknowledge that we will own and may use the Feedback provided by you to further improve or enhance Swimmo Service. Accordingly, you agree to and hereby assigns to us the Feedback (including all intellectual property rights contained therein and any modification or improvements thereof, by whomever made).

Miscelanneous Provisions

Any action related to this Agreement will be governed by California law and controlling U.S. Federal law. All disputes arising out of or relating to these Terms, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in San Francisco, California. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the State of Delaware without reference to principles of conflicts of laws. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU HEREBY WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. The Company does not hereby waive any defense that such jurisdiction may be lacking in your jurisdiction. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to these Terms shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in San Francisco, California, except that, following confirmation of an arbitration award in a state or federal court in San Francisco, California, a judgment arising therefrom may be executed in any court of competent jurisdiction.

This Agreement represents the parties’ entire understanding relating to the use of the Swimmo Service and supersedes any prior or contemporaneous, conflicting or additional, communications. Swimmo reserves the right to change these Terms or its policies relating to the Website at any time and from time to time, and such changes will be effective upon being posted herein. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular portion of the Swimmo Service, which may be posted from time to time. Your continued use of the Swimmo Service after any such changes and/or postings shall constitute your consent to such changes. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Swimmo and you as a result of these Terms or use of the Swimmo Service. You may not assign this Agreement without the prior written approval of Swimmo. Any purported assignment in violation of this section shall be void. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any and all rights not expressly granted herein are reserved by Swimmo.

Order Terms and Conditions

Returns Policy

You have the right to return product within 14 calendar days if you changed your mind about your purchase. In that case return shipping costs are covered by the customer and you should send the unused goods back within 14 days of informing the seller to the address given in instructions from the seller of your Swimmo.

The returned product must not show wear or damage and should contain all original documentation, packaging and all accessories. If we find that the product has not been returned to seller in a fully resalable condition, the seller reserves the right to refuse a refund on the item or refund the amount with restocking fees applied, at the seller disposal.

Except as set forth in these Terms, all other purchases are final and no returns shall be accepted after the set period.

Limited Warranty

Swimmo stands behind its products. Swimmo warrants the products sold through the Swimmo Service against defects in materials and workmanship under normal use for a period of ONE (1) YEAR from the date of retail purchase by the original end-user purchaser (“Warranty Period”). During this warranty period, if a defect arises, and you follow the instructions for returning the product, we will, at our option, either (i) repair the product using either new or refurbished parts, (ii) replace the product with a new or refurbished product, or (iii) refund the purchase price of the product. Any replacement may be, at the option of Swimmo, a new or remanufactured product. A replacement product assumes the remaining warranty of the original product or ninety (90) days from the date of replacement or repair, whichever provides longer coverage for you.

This warranty applies only to hardware products manufactured by or for Swimmo that can be identified by the “Swimmo” trade name, or logo affixed to them and which are sold through the Swimmo Service.

This warranty does not apply: (i) to consumable parts, such as batteries and ink cartridges, unless damage has occurred due to a defect in materials or workmanship; (ii) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (iii) defects or damage caused by misuse, accident (including without limitation collision, fire and the spillage of food or liquid), neglect, abuse, alteration, unusual stress, modification, improper or unauthorized repair, installation, wiring, or testing, improper storage, use in an unapproved device or if the serial number has been removed; (iv) to damage caused by operating the product outside the permitted or intended uses described by Swimmo; (v) to damage caused by use with non-Swimmo products; (vi) to any non- Swimmo hardware products or any software, even if packaged or sold with Swimmo products.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SWIMMO’S RESPONSIBILITY FOR HARDWARE DEFECTS IS LIMITED TO REPAIR OR REPLACEMENT SERVICE AS DETERMINED BY SWIMMO IN ITS SOLE DISCRETION. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN TIME TO THE TERM OF THIS LIMITED WARRANTY. NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER THE EXPIRATION OF THE LIMITED WARRANTY PERIOD. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THIS LIMITATION MAY NOT APPLY TO YOU.

To obtain warranty service for any products that is subject to the foregoing warranty, you must notify Swimmo to obtain a Return Material Authorization (“RMA”) and return the defective product together with proof of purchase to the address specified by Swimmo in connection with the RMA. You are responsible for shipment of the defective product to Swimmo and safe delivery to our office per RMA instructions. Swimmo recommends shipping using traceable service via your national postal service (e.g. USPS, RoyalMail). We are unable to accept parcels sent using couriers, especially FedEx or DHL. After the confirmation of defect, Swimmo will reimburse you the costs of shipping up to 30 USD.

We reserve the right to decide whether to exchange the product or repair the defective one especially if it is disproportionately expensive for the seller.

Shipping and Delivery

Deliveries may be shipped from multiple locations. While we strive to deliver all orders as quickly as possible, we ask our customers to allow up to 6-12 weeks for delivery even though an order may be delivered in quicker time. If after 12 weeks, you have not received your order, please contact our Customer Service Team at orders@swimmo.com. Swimmo reserves the right to use any shipping method we deem necessary although we will try to adhere to your choosen method. Unless you are told otherwise by a Swimmo representative, your order will be left in your mailbox or at the doorstep of the shipping address. A shipping and handling fee is applied to all orders. The shipping and handling cost is a non-negotiable flat rate fee that covers the cost of postage as well as handling and packaging costs. Please be advised that if you choose an expedited shipping method at an additional cost, your order still has to process through fulfillment. The expedited service starts at the time your package is shipped. We regret that we cannot ship items to PO Box addresses.

If your product is shipped to you and the address is invalid upon delivery, you are responsible for a redirect or re-ship fee which will vary depending on your region. Swimmo is not responsible for packages delivered to an outdated address. If the product is returned to Swimmo you will be responsible for additional shipping charges.

Customs and Duties

All applicable customs fees, taxes and duties are the sole responsibility of the customer. Customs authorities require that we state the value of your order directly on your package – the value is the retail cost. Swimmo cannot mark any package(s) as a “Gift” in order to avoid customs and duties fees.

Please note that on rare occasions, customs agents may delay the delivery of some packages at their discretion. For more information on customs and duties charges, please contact your local customs office. Swimmo is not responsible for any delays or lost packages due to shipment.

Terms of Purchase

Swimmo currently accept the following online methods of payment: Visa, MasterCard, American Express, JCB, Discover and Paypal. Should any personal information necessary to fulfill your order change after the time your order was placed (such as billing address, shipping address or phone number), it is your responsibility to contact us with updated information. If your order is returned to us due to being provided incorrect shipping information, you may be subject to a return shipment fee. Your order confirmation will reflect the items ordered and the total amount to be charged. Swimmo is not responsible for pricing, typographical or other errors in any offer by Swimmo and reserves the right to cancel any orders arising from such errors. Swimmo is not responsible for any errors in any offer by Swimmo resulting from any technical service malfunction and reserves the right to cancel any orders arising from such errors.

Last modified: May 20, 2015.


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