We, Swimmo Inc., a Delaware corporation ("Swimmo", "we" or "Swimmo company"), offer motivation and monitoring services (collectively referred to as the "Services") to users of our swimming tracking device(s) (the "Product" or "Swimmo Product") consisting of Hardware and Software, through our Swimmo mobile applications (the "Swimmo App" or "Mobile Apps") and/or websites (the "Website"). By accessing or using the products, applications and services owned or operated by Swimmo, you are accepting and agreeing to be bound by the terms and conditions set forth below (these "Terms").

We may modify the Terms at any time, in our sole discretion. If you continue to use the Services after we've notified you that the Terms have been modified, you are agreeing to be bound by the modified Terms. If you don't agree to be bound by the modified Terms then you may no longer use the Services. Because our Services continue to evolve, we may change or discontinue all or any part of the Services, at any time and without notice, in our sole discretion.

Mobile Apps, Website

Downloading Our App

When you download our App from the Apple App Store, Google Play Store or other app store or app distribution platform (an "App Store"), you acknowledge and agree that:

  • These Terms are concluded between us, and not with the App Store, and that we (not the App Store), are solely responsible for our App.
  • The App Store has no obligation to furnish any maintenance and support Services with respect to our App or handle any warranty claims.
  • The App Store is not responsible for addressing any claims you have relating to our App, including product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that our App fails to conform to any applicable legal or regulatory requirement.
  • The App Store is a third party beneficiary of these Terms and has the right to enforce these Terms against you (as it relates to your license of our App through their App Store). You must also comply with the App Store's Terms of Service when using our App.

Creating an Account

In order to use certain features of our Services, you must have an account with us. By creating an account, you represent that (a) all required information you provide is truthful and accurate; (b) you are of legal age to agree to these Terms; and (c) your use of our Services does not violate any applicable law or regulation or these Terms.

You are responsible for maintaining the confidentiality of your password and you agree to accept responsibility for activity that occurs under your account. You should notify us immediately if you suspect any unauthorized use of your account or access to your password. You may not (a) use the account or username of any other user; (b) allow someone else to use your account or username; or (c) sell, lend, transfer, or otherwise share your account, temporarily or permanently, with someone else. If you violate these Terms, we reserve the right to issue you a warning, suspend or even terminate your account (along with your ability to access and use the Services).

Alerts and Notifications

As part of the Services we provide, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you outside or inside the App ("Push Messages"). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services (with the possible exception of infrequent, important service announcements and administrative messages).

Content You Provide

You are responsible for the content, such as any text, images, and other material and information, that you upload or post on or through our Services (your "Content"), and its legality, reliability, and appropriateness. You should only upload or post Content that you create or have the right to use and publish. By uploading or posting your Content you give us the right and license to store, reproduce, modify, create derivative works of, publish, distribute, transfer, transmit, publicly display, publicly perform, and use your Content in connection with providing our Services. You agree that we can also make your Content available to other users of the Services, who may view and/or use your Content, subject to these Terms. We are not responsible for the content provided by, or the conduct of, any user and you bear the entire risk of using the App and Services and any interactions with other users.

Third Party Links

Our Services may contain links to content or services provided by third parties ("Third Party Links"). These Third Party Links are not under our control, and we are not responsible for their content, services, performance, operation, availability, business practices or policies. We are providing these Third Party Links to you only as a convenience but we do not imply any endorsement or recommendation of their content or services, or of any association of us with such third parties. If you access any of these Third Party Links, you do this entirely at your own risk and any charges or obligations you incur in your dealings with these third parties, are your responsibility. The websites available through the Third Party Links are subject to their own terms and policies, including privacy and data gathering practices.

Hardware

Hardware Limited Warranty

Swimmo stands behind its Products. Swimmo warrants that your Swimmo Product's hardware will be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery to the original retail purchaser (the "Warranty Period"). This warranty policy applies only to Product's hardware manufactured by or for Swimmo that are marked with the Swimmo trade name or Swimmo logo, contain a valid Swimmo serial number and which are sold by Swimmo either directly or indirectly.

During this Warranty Period, if a defect in the hardware of the Product arises, and you follow the instructions for returning the defective Product, Swimmo will inspect the Product, and at its sole option and subject to applicable laws: either (i) repair the Product using either new or refurbished parts, or (ii) replace the Product with a new or refurbished product.

If the same type of hardware defect occurs again after the Product was replaced or repaired, Swimmo will inspect the Product again and may: (i) repair the product using either new or refurbished parts, (ii) replace the product with a new or refurbished product, or (iii) at its decision refund the original purchase price upon return of the defective Product (excluding taxes and shipping costs).

To obtain Warranty Service for your Product, you have to notify Swimmo about the hardware defect to obtain a Return Material Authorization ("RMA") form and return the defective Product for Warranty Service together with RMA form. 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 that defect is valid, Swimmo will reimburse you the costs of shipping up to 30 USD.

In RMA form or during inspection of defective Product, you may be asked to provide order number. If your hardware Product was not purchased directly, but from one of Swimmo local retail partners, please contact your local retailer (seller) who is able to confirm your purchase and will handle your RMA process. Manageable timeframe is needed for continuous quality improvement of production processes, that's why we ask you to inform the seller about the hardware defect within 60 days since it happened.

We may ask you - remotely via email (or during inspection of RMA after arrival) - for additional necessary information about the defect to verify the issue faster. A replacement Product is covered under the remaining Warranty Period of the original Product or ninety (90) days from the date of replacement or repair, whichever provides longer coverage for you. Swimmo reserves the right to decide whether to replace the Product or repair the defect especially if it is disproportionately expensive for the seller. If the defect is confirmed, after replacement or repair we send back the Product to you at our cost. Swimmo might at its sole decision on a case-by-case basis simplify the rules of Warranty Service without a need to change wording of these Terms.

This Warranty Service policy does not apply to, and specifically excludes, the following:

  • (a) normal wear and tear and cosmetic damage, including, but not limited to, scratches, dents and broken plastic; (b) consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship in the Products;
  • (c) defects or damage caused by misuse (e.g. exposing the Product to high temperatures of sauna over 50°C), accident (including, without limitation, collision, fire or the spillage of food), neglect, abuse, alteration, unusual stress, modification, improper or unauthorized repair, installation, wiring, or testing, improper storage, modification or other causes beyond our reasonable control;
  • (d) modifications of the Products hardware, firmware or software by anyone other than Swimmo;
  • (e) any software, for which policy is described below, even if packaged with the hardware Product;
  • (f) damage caused by operating the Products outside the intended uses described by Swimmo;
  • (g) damage caused by use with non-Swimmo products, unapproved use of third-party non-Swimmo applications downloaded to the hardware Products or other third-party applications that connect to and communicate with the Products or if the serial number has been removed.

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 OR FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN TIME TO THE TERM OF THIS LIMITED WARRANTY. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, ARE DISCLAIMED. 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.

Software

Corrections of Software Issues

We will use reasonable efforts to correct any discovered issues in the Software of our Product, App or Services (the "Software"). Our Software is provided on an "AS IS" and "AS AVAILABLE" basis and we do not represent, warrant, or guarantee that the Product Software, App and Services will be provided uninterrupted or error-free. Due to nature of our shared global infrastructure by several vendors and global user base, Swimmo does not warrant that the operation of the Software will be uninterrupted or error-free.

Please do note that your feedback and explanations may be needed for us to identify the root cause of any reported issue(s), including but not limited to, details about your third-party mobile phones that you use, your product serial number as well as we may ask other questions related to your swimming or more in depth description of issue occurrence. We do care about educating our users as well as increasing the ease of use of our Products and Services, therefore we use each issue as a lesson to learn, gather all necessary information and act on it to improve further.

Feature Requests & Feedback

If you provide any suggestions, ideas, feedback, feature requests, or recommendations to us regarding our Products, App or Services ("Feedback"), we will treat it 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). By providing us with Feedback, you give us a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner any and all Feedback.

Disclaimer of Warranty

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES REGARDING THE SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF TITLE, MERCHANT- ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO OUR SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF YOUR FIRST USE OR THE MINIMUM DURATION ALLOWED BY LAW.

Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information. The terms of the Privacy Policy are expressly incorporated herein as though set forth in full.

Copyright Policy

It is our policy to remove, or disable access to, material that infringes any copyright on our Services after we have been notified by the copyright owner or the copyright owner's legal agent. If you believe that your work has been copied and posted on through our Services in a way that constitutes copyright infringement, please provide our copyright agent with the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • an identification of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on our Services;
  • your address, telephone number, and e-mail address;
  • 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 law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

If you want to send us a notice of claims of copyright infringement, please contact us by email.

License Agreement

Subject to your compliance with these Terms, Swimmo grants you a a personal, non-exclusive, non-transferable limited license to use Swimmo Services, download and install a copy of Swimmo Product Software and apps (the "App") on a mobile devices that you own or control and to run such copy of the App and use our Services solely for your own personal non-commercial purposes. We reserve all rights in and to the App and Services not expressly granted to you under these Terms. You may not: (i) copy, modify or create derivative works based on the App or Services; (ii) distribute, transfer, sublicense, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App or Services available to multiple users through any means.

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 Services. 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. The terms of the Privacy Policy are expressly incorporated herein as though set forth in full.

Intellectual Property Rights Ownership

You acknowledge that all intellectual property rights in Swimmo Product (Hardware & Software), Mobile Apps, Website (Swimmo Services), especially including the underlying software, algorithms and technology and the information and content available on Swimmo Services, are owned by Swimmo, and are protected by law throughout the world. All rights not expressly granted in this agreement are reserved by Swimmo.

General Prohibitions

You must use the Services only for a lawful purpose. You must not take any action that may compromise the security of Services, make the Services inaccessible to others, or cause damage to the Services. All of this, including its organization, selection, and arrangement, as well as various software or programming within or related to the Services, belong to us. No content from the Services 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.

Moreover, you agree not to do any of the following:

  • Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
  • Use the Services to track the location of, or collect any personally identifiable information from, any other person without their express permission;
  • Intercept or "sniff" the communication packets between the Swimmo hardware and mobile devices or attempt to reverse engineer the Swimmo Bluetooth Low Energy profile or Swimmo protocol;
  • Access, tamper with, or use non-public areas of the Services, Swimmo's computer systems, or the technical delivery systems of Swimmo's providers;
  • 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 Services;
  • Attempt to access or search the Services or Content or download Content from the Services through the use of any tool, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Swimmo or other generally available third party web browsers;
  • 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; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Termination

This agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing to use of the Services and deleting or destroying any copies of Software. We reserve the right to terminate or suspend your account or your access to any or all portions of the Services at any time, for any reason, including your violation or breach of any provision in these Terms. Swimmo reserves the right to disable Products if Swimmo determines that the Products are counterfeit, stolen or lost in shipment or are not fully paid for (e.g. payment frauds, shipping frauds, false claims of non receipt of goods). Upon termination, all rights and licenses granted to you in these Terms immediately end. If your account or access to our Services is terminated or suspended because you violated these Terms, you will not be entitled to any refund of any fees or payments and you will have no further right to access any of the foregoing or your account.

Miscellaneous Provisions

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.

Enforcement

We have the right (but not the obligation) to review any or all portions of your Content and delete (or modify) any of your Content from our Services for any reason, including if we believe, in our sole judgment, your Content violates these Terms, or that we believe threatens the safety of, or harms any other person, or creates liability for us or any other person. We reserve the right (but have no obligation) to investigate and take appropriate action, including removing your Content from our Services (or modifying it), suspending or terminating your account and/or suspending or terminating the provision of our Services to you, and/or reporting you to law enforcement authorities, if you violate any provision of these Terms. In order to cooperate with governmental requests, subpoenas or court orders, to protect our systems, service providers, partners, and other users, or to ensure the integrity and operation of our business and systems, we may access and disclose any information or content we consider necessary or appropriate, including your account information (i.e. name, e-mail address, etc.), IP address and traffic information, usage history, your Content, and your conduct.

Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the exclusions or limitations may not apply to you.

Limitation of Liability

EXCEPT TO THE EXTENT REQUIRED BY LAW, WE WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, OR DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, RELATED TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF THE PRODUCTS, APP OR SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ANY CLAIM RELATED TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF THE PRODUCTS, APP OR SERVICE, IS LIMITED TO THE AMOUNT PAID BY YOU FOR THE PRODUCT IN THE 12 MONTHS BEFORE THE CLAIM AROSE.

Disclaimers

EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SWIMMO, THE SWIMMO SERVICES ARE PROVIDED "AS IS," AND ARE 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 SERVICES 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 SERVICES AND THE GOODS, SERVICES ASSOCIATED WITH THE SWIMMO SERVICE, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE SWIMMO SERVICES 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 SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SWIMMO SERVICES WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, OR THE SYSTEMS THAT MAKE THE SWIMMO SERVICES 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 SERVICES 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 SERVICES 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 THE SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE SWIMMO SERVICE.

Arbitration Agreement

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. 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.

Entire Agreement

These Terms constitute the entire agreement between us with respect to the subject matter and supersedes any prior understandings and agreements. These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. If any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of these Terms will remain in full force and effect.

If you have any questions about these Terms, please contact us.

Last modified: Jan 3, 2018.


Sprache ändern