Last Modified: May 1, 2015
This website, http://www.swimspot.com (“Website”), is hosted by SwimSpot Holdings LLC (“SwimSpot”).
ANY DISPUTE BETWEEN YOU AND SWIMSPOT MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION IN THIS AGREEMENT AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
The Website may contain message boards, forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website. You may not submit or upload User Contributions that are defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harm or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant SwimSpot and its affiliates and service providers, and each of their respective licensees, successors and assigns a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Contirbution, in whole or in part, in all media formats and channels now known or hereafter devised (including on third-party sites and platforms such as Facebook and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. SwimSpot claims no ownership to your User Contribution.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to SwimSpot and its affiliates and service providers, and each of their respective licensees, successors and assigns.
- All of your User Contributions do and will comply with this Agreement.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not SwimSpot, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
SwimSpot is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Website. You agree to indemnify and hold SwimSpot and its subsidiary, parent and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against SwimSpot by any third party arising out of or in connection with SwimSpot’s use and exploitation of your User Contribution. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Contributions against SwimSpot or its licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights. We ask that you not send us any User Contributions which you do not intend to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork.
SwimSpot has the right to monitor, screen, post, remove, modify, store and review User Contributions, at any time and for any reason, including to ensure that the User Contribution conforms to this Agreement, without prior notice to you. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
SwimSpot is a registered trademark of SwimSpot Holdings LLC. Bikini Builder and other marks indicated on our Website are trademarks or registered trademarks of SwimSpot Holdings LLC and its affiliates in the United States and other countries. All rights in such names are hereby reserved.
All rights in the product names, company names, trade names, graphics, logos, page headers, button icons, scripts, product packaging, trade dress and designs of all SwimSpot or third-party products or services, whether or not appearing in large print or with the trademark symbol, belong exclusively to SwimSpot Holdings LLC or their respective owners and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Website confers on you any license or right under any patent or trademark of SwimSpot Holdings LLC or any third party.
All copyright rights in the text, images, photographs, graphics, user interface, music and other content provided on the Website, and the selection, coordination, and arrangement of such content, are owned by SwimSpot Holdings LLC or its third-party licensors to the full extent provided under the United States Copyright Act and all international copyright laws. Under applicable copyright laws, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the contents of the Website for any purpose. Nothing stated or implied on the Website confers on you any license or right under any copyright of SwimSpot Holdings LLC or any third party.
The Website and the information contained in reference herein are for your personal, non-commercial use only. Except as otherwise specifically permitted herein, you shall not broadcast, duplicate, copy, reproduce, edit, manipulate, modify, publish, rent, sell, publicly display, perform, distribute, transmit, or circulate to anyone the contents of the Website, or use the contents of the Website in litigation, or for any commercial or promotional purposes, without the express written consent of SwimSpot or its lawful successors and assigns.
For usage permission, please contact us via e-mail at email@example.com.
Notice of Copyright Infringement
SwimSpot respects and honors the intellectual property of others. If you believe that your work has been copied and is accessible on the Website in a way that constitutes copyright infringement, please provide SwimSpot with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the allegedly infringing material on the Website that is requested to be removed, and information reasonably sufficient to permit SwimSpot to locate the material;
- Your name, address, and daytime telephone number, and an email address if available, so that SwimSpot may contact you if necessary;
- A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.
SwimSpot’s Copyright Agent to receive claims of copyright infringement on the Website is SwimSpot’s Corporate Counsel, who can be reached as follows:
SwimSpot Holdings LLC
2692 Dow Avenue
Tustin, CA 92780
SwimSpot may remove any User Contributions, e.g., if properly informed that the User Contributions infringe another’s copyright rights. SwimSpot may terminate the ability to submit User Contributions if, under appropriate circumstances, a person submitting User Contributions to the Website is determined to be a repeat infringer.
License and Website Access
SwimSpot grants you a limited, revocable and nonexclusive license to access and make personal use of the Website but not to download (other than page caching) or modify it, or any portion of it, except with the express written consent of SwimSpot . This license does not include any resale or commercial use of the Website or its contents; any collection and use of any product listings, photographs, descriptions, or prices; any derivative use of the Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools.
Neither the Website nor any portion of the Website may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of SwimSpot. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of SwimSpot and its affiliates without the express written consent of SwimSpot. You may not use meta tags or any other hidden text using SwimSpot’s name or trademarks without the express written consent of SwimSpot. Any unauthorized use will immediately terminate the permission or license granted by SwimSpot.
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of SwimSpot so long as the link does not portray SwimSpot or its products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by SwimSpot in its sole discretion. You must not link to any part of the Website other than the homepage. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on SwimSpot’s part without our express written consent. You may not use any SwimSpot logo or other proprietary graphic or trademark as part of the link without express written permission from SwimSpot. You may not make any other part of the Website available as part of another service or cause the Website to be displayed, or appear to be displayed, on any other site by “deep linking,” or otherwise, without prior written permission from SwimSpot.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our sole discretion.
Changes to the Website
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
When you access the Website through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply.
Third Party and Co-Branded Websites
You agree to comply with all applicable laws in connection with your use of the Website, and such further limitations as may be set forth in any written or on-screen notice from SwimSpot. As a condition of your use of the Website, you warrant that you will not use the Website for any purpose that is unlawful or prohibited by this Agreement. All information that you provide in connection with a purchase or transaction or other interaction with the Website or any co-branded website will be accurate, complete, and current. You will pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other interaction with SwimSpot or any co-branded website at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other interactions.
By using the Website, you agree not to violate or attempt to violate the security of the Website, including, by way of illustration but not limitation, actions such as accessing data not intended for you or logging into a server or account that you are not authorized to access; attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; attempting to interfere with service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Website; sending unsolicited email, including promotions and/or advertising of products or services; and forging any TCP/IP packet header or any part of the header information in any email or posting.
You acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You are responsible for taking reasonable steps to maintain the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness.
We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason.
Risk of Loss
All products purchased from the Website are transported and delivered to you by an independent carrier not affiliated with, or controlled by, SwimSpot . Title to products purchased on the Website, as well as the risk of loss for such products, passes to you when SwimSpot delivers these items to the carrier.
The Order Process
You will have the opportunity to review and confirm your order, including delivery address (if applicable), payment method and product details. We will send you a notice when we accept your order and our acceptance will be deemed complete, and for all purposes to have been effectively communicated to you, at the time we send the notice. At such time, the contract for sale will be made and become binding on both you and us.
We reserve the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will refund your payment.
Payments and Billing
When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards.
You have the right within thirty (30) days from the date SwimSpot ships the physical goods to return the goods. This right does not apply to goods stated by us on our return policy to be non-returnable. If you are returning goods that are not faulty, you may be required to pay for the cost of returning the goods to us and we may deduct a reasonable amount if you use the goods.
If you wish to cancel your order, you must do so by following the instructions below:
- During business hours: call SwimSpot within three (3) hours of placing your order at 877-684-7946; and
- After business hours: email SwimSpot at firstname.lastname@example.org.
Business hours are from 9:00 AM PST to 5:00 PM PST.
SwimSpot may revise the pricing for products we offer. Unless otherwise stated, the prices displayed on the Website are quoted in U.S. Dollars.
When you place your order, we estimate the tax and include that estimate in the total for your convenience. The actual tax amount that will be applied to your order and charged to your payment method is based on calculations on the date of shipment, regardless of when the order was placed.
When ordering goods for delivery to countries other than the United States, you may have to pay import duties and taxes levied. These and any additional charges for customs clearance must be borne by you. SwimSpot does not collect duties and taxes and cannot predict what your particular charges may be; and in the event you incur these additional charges, they must be rendered in order for your package to clear customs. For goods shipped internationally, please note that any manufacturer warranty may not be valid; instructions and safety warnings may not be in destination country languages; and the goods and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements. You are responsible for assuring the goods can be lawfully imported to the destination country. When ordering from SwimSpot, the recipient is the importer of record and must comply with all laws and regulations of the destination country.
For questions about international shipping, please contact your local customs office.
SwimSpot attempts to be accurate in describing its products. We do not warrant that product descriptions or other content of the Website are complete, reliable, current, or error-free.
We have made every effort to display as accurately as possible the colors of our products that appear on the Website. As the actual colors you see depend on your device monitor, we cannot guarantee that your monitor’s display of any color will be accurate.
Additional Terms and Conditions
Additional terms and conditions may apply to specific portions or features of the Website, such as rules for a SwimSpot contest or sweepstakes. Any additional terms and conditions supplement these terms and, in the event of a conflict, prevail over these terms. All such additional terms and conditions are hereby incorporated by this reference into the Agreement.
DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY
THE SITE IS PROVIDED BY SWIMSPOT ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SWIMSPOT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, THIRD-PARTY CONTENT, MATERIALS, PRODUCTS, SERVICES OR LINKED SERVICES PROVIDED ON OR THROUGH THE SITE, INCLUDING WITHOUT LIMITATION, THAT THE INFORMATION PROVIDED THROUGH THE SITE WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; OR THAT THE CONTENT ON THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY INFORMATION ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE, AND WE DISCLAIM ALL RESPONSIBILITY FOR THESE CHANGES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SWIMSPOT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL SWIMSPOT, ITS AFFILIATES, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, INABILITY TO USE THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTIAL, EXEMPLARY, PUNITIVE, SPECIAL AND CONSEQUENTIAL DAMAGES OR ANY DAMAGES; IN THE EVENT A THIRD PARTY INTERCEPTS OR DECRYPTS ANY TRANSMISSION OF INFORMATION THAT YOU PROVIDE TO SWIMSPOT THROUGH THE SITE; OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF SWIMSPOT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DICLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify, and hold harmless SwimSpot and its affiliates, successors and assigns, and its and their respective directors, officers, employees, agents, co-branders or other partners from and against any and all allegations, claims, demands, actions, causes of action, proceedings (whether threatened or pending), orders, damages, losses, liabilities, costs and expenses, including reasonable attorney’s fees and other legal expenses, and judgments of any kind of nature, incurred by SwimSpot arising out of or relating to your use of the Website, your violation of this Agreement, or your violation of any rights of another.
Applicable Law and Disputes
All matters relating to this Agreement and the Website and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) will be governed by the laws of the United States of America and the State of California, without regard to principles of conflicts of law and as if this Agreement were a contract wholly entered into and wholly performed within the State of California. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Any dispute relating in any way to this Agreement, your visit to SwimSpot or SwimSpot’s Website, or to products you purchase through SwimSpot shall be submitted to confidential arbitration in Orange County, California, United States of America, except disputes relating to the enforcement of SwimSpot’s intellectual property rights. Any action at law or in equity that is not subject to arbitration will be filed in any state or federal court in Orange County, California, United States of America, and you consent to exclusive jurisdiction and venue in such courts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
An arbitrator’s decision shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
Class Action Waiver
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor SwimSpot will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
Limitation on Filing Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Miscellaneous Legal Provisions
We may discontinue the Website at any time and for any reason without notice. We may change the contents, operation, or any and all other features of the Website at any time for any reason without notice. We may discontinue or restrict your use of the Website at any time for any reason without notice.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and SwimSpot as a result of this Agreement or your use of the Website. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The failure of SwimSpot to enforce any provision of this Agreement or respond to a breach by you or other parties will not in any way waive its right to enforce such provision or any other terms or conditions of this Agreement. If SwimSpot waives any provision of this Agreement, such waiver will not be deemed a further or continuing waiver of such provision or any other provision.
If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
This Agreement is the entire and final Agreement regarding the subject matter addressed in this Agreement, and supersedes any prior or contemporaneous communications between SwimSpot and you regarding our Website, our content, our applications, and our products.
All rights not expressly granted herein are hereby reserved to SwimSpot.