Effective Date: July 27, 2016
PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
BY ACCESSING OR USING THE SITE IN ANY WAY, CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE SITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU REPRESENT AND TO BIND THAT ENTITY TO THE AGREEMENT. The term "you" refers to the individual or entity, as applicable, identified as the user when you register on the Site. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SITE.
Subject to Section 15(i) of this Agreement, we reserve the right to change the terms and conditions of this Agreement at any time. Those changes will go into effect on the effective date shown in the revised Agreement. If we change this Agreement, we will give you notice by posting the revised Agreement on the Site. We encourage you to check this Agreement from time to time to see if it has been updated. YOUR CONTINUED USE OF THE SITE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF ANY SUCH CHANGES.
a. The information and materials on this Site are provided for general informational purposes. You may use this Site solely for the purpose of learning about and/or purchasing SwimOutlet.com products. You may not use, reproduce, or distribute the text, graphics, downloads, tools, or any other content on this Site for any other purpose. This Site is not directed at children and you may not use this Site if you are under the age of thirteen.
b. You agree that SwimOutlet.com may, without cause or prior notice, and without liability to you or any third party, immediately terminate your SwimOutlet.com account and/or email address, access to your account, access/participation in any special marketing groups, access to our blog, access to or participation in any promotions or contests, or access to any of our social networking pages, in accordance with this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your account may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies SwimOutlet.com may have at law or in equity.
c. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Agreement or other agreements or guidelines posted on the Site, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification to the Site (or any part thereof), (e) technical or security issues or problems, (f) inactivity, (g) engagement by you in fraudulent or illegal activities, (h) nonpayment of any fees owed by you in connection with the Site, and/or (i) no cause at all.
d. Termination of your SwimOutlet.com account includes (a) removal of access to all offerings and features on the Site, (b) deletion of your password and all related information, files, and content associated with your account, and (c) barring of further use of your account. Further, you agree that all terminations for cause shall be made in SwimOutlet.com's sole discretion and that SwimOutlet.com shall not be liable to you or any third party for any termination of your account, any associated email address, or access to your account.
e. You may terminate your account, this Agreement, and your right to use your account at any time and for any reason or no reason, by contacting us at: email@example.com.
f. The provisions relating to intellectual property, disclaimer, warranty, indemnification, limitation of liability, law and jurisdiction shall survive termination of this Agreement.
a. The Site may, from time to time, offer interactive features that allow users to submit content to the Site. SwimOutlet.com does not and cannot review all such content, and is not responsible for such content.
b. You acknowledge that by providing the ability to view and distribute user-generated content on the Site, SwimOutlet.com is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability related thereto. By submitting any user-generated content, you represent and warrant that: (a) you are the sole creator and/or author of any such content including any intellectual property rights therein, or before posting, you obtained from the copyright owner the right to use and authorize SwimOutlet.com to use such content; (b) you hereby waive any moral rights you may have in such user-generated content; (c) all such content is true and accurate; and (d) you are the person appearing in any photograph or content uploaded. In any event, SwimOutlet.com reserves the right to block or remove communications or materials that it determines to be unacceptable to SwimOutlet.com in its sole discretion.
c. By submitting any user-generated content, you hereby grant SwimOutlet.com: (1) a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, and/or sell and/or distribute such content and/or incorporate such content into any form, medium, or technology throughout the world without compensation to you; and (2) the rights to publicity to use your name and/or likeness. If you are between the ages of 13 and 17 (i.e., not yet 18), you represent and warrant that you have your parents' permission to make such grants. All content that you submit may be used at SwimOutlet.com's sole discretion without any obligation of confidentiality.
d. Harassment in any manner or form on the Site, including via email, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others, including a SwimOutlet.com employee, host, or representative, as well as other members or visitors on the Site is prohibited. You may not upload to, distribute, or otherwise publish through the Site any content which is false, misleading, inaccurate, libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable in a manner which may constitute or encourage a criminal offense, violate the rights (including intellectual property rights or rights of publicity or privacy) of any party, advertise or otherwise solicit funds or any goods or services, or use the Site in any way that may otherwise give rise to liability or violate any law.
e. You alone are responsible for your involvement with other users or any other third parties with whom you interact on the Site; provided, however, that we reserve the right, but have no obligation, to intercede in such dispute. You agree that SwimOutlet.com will not be responsible for any liability incurred as a result of such interactions.
a. When you visit this Site, send emails to SwimOutlet.com, or when we post notices on our Site or communicate with you via email, you are communicating with us electronically. This section informs you of your rights when receiving electronic communications from us. By accessing and using the Site, you consent to receive communications from us electronically. You agree that all notices, disclosures, agreements, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Your consent to receive communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with SwimOutlet.com.
b. We may also use your email address to send you other messages, such as newsletters, and additional email messages about our products, services, contests, and promotions that we feel may be of interest to you. If you no longer wish to receive these types of promotional communications from us, you may select the unsubscribe link which is present in each email. You may also customize your communication preferences by accessing the email preference center in your SwimOutlet.com account page and adjusting your settings accordingly. Opting out may prevent you from receiving email messages regarding special offers, improvements, or other updates. Please keep us informed of any changes in your email address so you may continue to receive our communications without interruption.
You alone are responsible for your involvement with other users or any other third parties with whom you interact on the Site; provided, however, that we reserve the right, but have no obligation, to intercede in such dispute. You agree that SwimOutlet.com will not be responsible for any liability incurred as a result of such interactions
a. You acknowledge that SwimOutlet.com may establish general practices and limits concerning use of any content, including without limitation the maximum number of days that email messages, message board postings, or other uploaded content will be retained, the maximum number of email messages that may be sent from or received by an account, the maximum size of any email message that may be sent from or received by an account, the maximum disk space that will be allotted on SwimOutlet.com's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access your account in a given period of time. You agree that SwimOutlet.com has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted. You acknowledge that SwimOutlet.com reserves the right to log off, delete, or disable accounts that are inactive for an extended period of time. You further acknowledge that SwimOutlet.com reserves the right to modify these general practices and limits from time to time.
b. The colors shown on the Site may be influenced by the settings of your computer or your monitor. Accordingly, SwimOutlet.com makes no guarantees that any actual colors of Site content or materials will be true or accurate.
c. In the event that a product is mistakenly listed at an incorrect price or with incorrect specifications, SwimOutlet.com reserves the right to refuse or cancel any orders placed for products listed incorrectly, whether or not the order has been confirmed and your credit card charged. If your credit card has been charged for the purchase and your order is cancelled, SwimOutlet.com shall issue a credit to your credit card account in the amount of the incorrect price charged. In no event shall SwimOutlet.com be obligated to provide you the merchandise at the incorrect price.
a. THIS SITE, ITS CONTENT, AND THE MATERIALS ON THIS SITE ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SWIMOUTLET.COM HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, RELATED TO USE OF THE SITE. This section does not affect in any way our return policy or any limited warranty for goods purchased on the Site. If for any reason you are not satisfied with the purchase of a returnable product that you make, please return it in accordance with the terms of such policies, please contact us at firstname.lastname@example.org.
b. SwimOutlet.com does not represent or warrant that the functions contained in the Site will be uninterrupted or error-free, that the defects related to the Site will be corrected, or that this Site or the server that makes the Site available are free of viruses or other harmful components. SwimOutlet.com does not make any warranties or representations regarding the use of the materials in this Site in terms of their correctness, accuracy, adequacy, usefulness, timeliness, reliability, or otherwise. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
You agree to indemnify, defend and hold harmless SwimOutlet.Com, com, its officers, directors, employees, and agents ("SwimOutlet.com Parties") from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing the Site using your Internet account. You are responsible for protecting and not disclosing your user name and password to others. This provision does not require you to indemnify any SwimOutlet.com Party for any unconscionable commercial practice by such party, or for party's negligence, fraud, deception, false promise misrepresentation or concealment, suppression, or omission of any material fact in connection with this Site.
YOUR USE OF THE SITE IS AT YOUR OWN RISK. NEITHER SWIMOUTLET.COM, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, OR DIRECTORS, NOR ANY OF ITS AGENTS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR ITS CONTENT, ARE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS SECTION DOES NOT AFFECT OUR RETURN POLICY OR ANY LIMITED WARRANTY ASSOCIATED WITH GOODS THAT WE SELL. THE FOREGOING LIMITATION OF LIABILITYSHALL NOT APPLY TO LIABILITY OF A SWIMOUTLET.COM PARTY FOR (A) DEATH OR PERSONAL INJURY CASUED BY A SWIMOUTLET.COM PARTY'S NEGLGIENCE; OR FOR (B) ANY INJURY CAUSED BY A SWIMOUTLET.COM PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION. Notwithstanding the foregoing, you may only seek punitive damages for any actions by a SwimOutlet.com Party actuated by malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed.
a. The Site may contain links to other websites that are owned or operated by third parties. You acknowledge that we are not responsible for the operation of, or content located on or through, any such website.
b. Nonetheless, SwimOutlet.com seeks to protect the integrity of its Site and the links placed upon it and therefore requests any feedback, not only regarding its own Site, but for sites it links to as well (including if a specific link does not work). Any feedback you provide shall be non-confidential and non-proprietary.
Unless otherwise noted, the design of the Site, the Site as a whole, and materials that are part of the Site (collectively, "Content") belong exclusively to SwimOutlet.com and its affiliates and are protected by U.S. and international copyright, trademark, trade dress, and other intellectual property law. All software used on this Site is the property of SwimOutlet.com or its software suppliers and is protected by copyright laws and may not be used for any purpose by you except as set forth herein. You agree not to change or delete any proprietary notices from materials printed or downloaded from the Site. The Content of this Site, including but not limited to text, graphics or code, is copyrighted as a collective work under the United States and other copyright laws, and is the property of SwimOutlet.com. The collective work includes works that are licensed to SwimOutlet.com. Copyright 2003 - 2016, SwimOutlet.com ALL RIGHTS RESERVED. You may copy, print, display and, subject to any expressly stated restrictions or limitations relating to specific material, download or print portions of the material from the different areas of the Site solely for your own non-commercial use, or to place an order with SwimOutlet.com or to purchase SwimOutlet.com products. Any such orders or purchases are governed by separate terms and conditions which are available to you on our Site. Any other use, including but not limited to the reproduction, distribution, display or transmission of the Contents of this Site is strictly prohibited, unless authorized by SwimOutlet.com.
When accessing the Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your User ID. The burden of proving that any Content does not violate any laws or third party rights rests solely with you.
SwimOutlet.com imposes certain restrictions on your permissible use of the Site. You are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, "flooding," "spamming," "mail bombing," or "crashing;" (d) using the Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Site; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by SwimOutlet.com in providing the Site. Any violation of system or network security may subject you to civil and/or criminal liability.
If you believe that your copyright or other rights have been infringed, please provide the following information to our Designated Agent who can be reached by email at email@example.com.
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other interest;
(ii) a description of the copyrighted work or other work that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on the SwimOutlet.com's website;
(iv) your address, telephone number, and email address;
(v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf.
a. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying products from the Site for your own personal use only, and not for resale or export. Products purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, "Export Regulations").
b. SwimOutlet.com does not authorize the downloading or exportation of any software or technical data from this Site to any jurisdiction prohibited by Export Regulations.
a. We encourage you to contact our Customer Service department if you have concerns or complaints about the Site. Generally, customer complaints can be satisfactorily resolved in this way. If we cannot resolve your concerns informally, disputes between us shall be resolved pursuant to this Section 13.
b. You and SwimOutlet.com agree to arbitrate all disputes and claims (including the interpretation and scope of this clause, and the arbitrability of the dispute or claim) between us including, but not limited to, all claims arising out of or relating to any aspect of our relationship, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this, or any prior, version of this Agreement, or that may arise after termination of this Agreement.
c. Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Under this Agreement, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys' fees, if the applicable law allows. BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND SWIMOUTLET.COM AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT (except small claims court). Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court's authority.
e. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction.
f. In the event that you are able to demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to costs of litigation, SwimOutlet.com will pay as much of your arbitration filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. SwimOutlet.com also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration. However, SwimOutlet.com will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
g. YOU AND SWIMOUTLET.COM AGREE THAT ANY CLAIMS BROUGHT BY YOU OR SWIMOUTLET.COM WILL BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. You and SwimOutlet.com agree to seek only such individual relief—whether in the form of individual damages, an individualized injunction, or other non-monetary individual relief—as is necessary to resolve any individual injury that either you or SwimOutlet.com have suffered or may suffer.
h. The requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member ("Class Action Waiver") is non-severable. If the Class Action Waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, with the exception of the next sentence. In the event the Class Action Waiver is found to be unenforceable, or in the event the agreement to arbitrate is found to not apply to a dispute, that such action between you and SwimOutlet.com shall proceed in the federal or state courts located in Santa Clara County, California.
i. Notwithstanding any provision in this Agreement to the contrary, we agree that if SwimOutlet.com makes any change to this arbitration provision, such change will not be applicable to any dispute to which you had previously provided notice to SwimOutlet.com.
j. If you do not want to be bound to this agreement to arbitrate, you must opt out of it within 30 days of it first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of this Agreement containing an arbitration agreement). To opt out of this agreement to arbitrate, you must send a letter or postcard to SwimOutlet.com's headquarters, to the attention of the "Legal Department" and state that you do not want to be bound by this arbitration agreement. SwimOutlet.com's address is 1919 S. Bascom Ave, Suite 300, Campbell, CA 95008.
k. These Agreement and your use of the Site are governed by the laws of the State of California, subject to the Federal Arbitration Act, without regard to its choice of law provisions.
SwimOutlet.com may assign its rights and duties under this Agreement to any party at any time without notice to you.
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by SwimOutlet.com or by any third party.
SwimOutlet.com may, in its sole discretion and without prior notice, (a) modify the Site; or (c) discontinue the Site at any time.
Effective Date: July 27, 2016