Welcome to the Swimnerd website (the "Site"). Water Monsters, LLC, d/b/a Swimnerd (“Swimnerd”) provides services to you subject to the notices, terms, and conditions set forth in this agreement (the "Agreement"). In addition, when you use any of our services (e.g., Customer Reviews), you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they are incorporated into this Agreement by this reference. We reserve the right to change this Site and these terms and conditions at any time. ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING.
USE OF SITE
You represent and warrant that you are at least 18 years old or visiting the Site under the supervision of a parent or guardian. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of shopping for items sold on the Site and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.
Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders at its discretion, including, without limitation, if we believe that customer conduct violates applicable law or is harmful to our interests.
You shall not upload to, distribute, or otherwise publish through this Site any Content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
Content provided on this site is solely for informational purposes. It is your sole responsibility to consult a licensed physician or qualified health care professional for advice, diagnosis, and/or treatment of any health related condition or to ensure that you are well enough for physical activities. Submissions or opinions expressed on this Site are that of the individual expressing such Submission or opinion and may not reflect our opinions.
Product representations expressed on this Site of products that are not manufactured by Swimnerd are that of the vendor and are not made by us.
We may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the terms and conditions of this Agreement, and we have no obligation to investigate the authorization or source of any such access or use of the Site. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security.
REVIEWS & COMMENTS
Except as otherwise provided elsewhere in this Agreement or on the Site, anything that you submit or post to the Site and/or provide us, including without limitation, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, "Submissions") is and will be treated as nonconfidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.
In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, comment, or other Content, if any, in connection with such review, comment, or other content. You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other Content that you post on this Site and that use of your reviews, comments, or other Content by us will not infringe upon or violate the rights of any third party. You shall not use a false e mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions or Content. We may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.
All text, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to Swimnerd, or its affiliates, or is being used by Swimnerd under license. The collection, arrangement, and assembly of all Content on this Site (the "Compilation") belongs exclusively to Swimnerd or its affiliates. All software used on this Site (the "Software") is the property of Swimnerd, its affiliates or its Software suppliers. The Content, the Compilation and the Software are all protected by U.S. and international copyright laws. The Swimnerd (& design), and other logos, slogans, trade names or words are registered trademarks, trademarks or service marks of Swimnerd, its affiliates, suppliers, or third parties. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.
RISK OF LOSS; USE OF ACCOUNT
The risk of loss and title for items purchased by you pass to you upon our delivery of the items to the carrier. If you use a Swimnerd account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Swimnerd does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Swimnerd services only with involvement of a parent or guardian. Swimnerd reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
TERMINATION & EFFECT OF TERMINATION
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Agreement or revoke any or all of your rights granted under this Agreement. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
DISCLAIMER AND LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE SET FORTH ON THIS SITE, INCLUDING WITHOUT LIMITATION THE PRODUCT DESCRIPTIONS OF SPECIFIC PRODUCTS, THIS SITE, THE PRODUCTS OFFERED FOR SALE ON IT AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED BY US ON AN "AS IS" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION. THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES (REGARDLESS OF THE FOUNDATION FOR THE ACTION) SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US DURING THE MONTH IMMEDIATELY PRECEDING THE ACT ALLEGEDLY GIVING RISE TO OUR LIABILITY.
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
This site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site.
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement located at the bottom of this page.
You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.
No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.
No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.
This site is created and controlled by us in the Commonwealth of Virginia, USA. As such, the laws of the Commonwealth of Virginia will govern these disclaimers, terms, and conditions, without giving effect to any principles of conflicts of laws.
If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site to:
2309 Trelawney Rd
Virginia Beach, VA 23455
Applicable from: May 29, 2019
The following terms of service and end user license agreement (“EULA”) constitute an agreement between you and Water Monsters, LLC, dba Swimnerd, and its affiliates (“Swimnerd”). This EULA governs your use of Software and Services (as specified below). By installing or using the Software you agree to be bound by the terms of this EULA. If you do not accept the terms of this EULA, do not install, use or access the Software.
For purposes of this EULA "Software" means the Swimnerd mobile application software and all data or content that is accessed or utilized by the Swimnerd mobile application software. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials (collectively, the “Services”.)
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE SWIMNERD SOFTWARE OR SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE SWIMNERD SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.
SOFTWARE LICENSE. Subject to this EULA and its terms and conditions, Swimnerd hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for your personal non-commercial use on a single iPhone, iPod Touch or iPad you own, and to maintain a single copy as backup on your personal computer, solely in machine executable code and solely for your personal use. The rights granted herein are subject to your compliance with this EULA. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software. Subject to this EULA and its terms and conditions, Swimnerd hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by Swimnerd, for your personal non-commercial use, in the manner permitted by this EULA. The rights granted herein are subject to your compliance with this EULA.
LICENSE TERM. The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or Swimnerd's termination of this EULA. Your license terminates immediately if you violate any of the terms of this EULA.
OWNERSHIP; NO OTHER LICENSES. Swimnerd licenses, and does not sell, the Software to you pursuant to the terms of this Agreement. Swimnerd retains all right, title and interest in and to the Software, including any changes, updates, corrections, or modifications to the Software. The Software is protected by applicable laws and treaties throughout the world, and may not be copied, reproduced, translated, or distributed in any manner or medium, in whole or in part, without prior written consent from Swimnerd. All rights not expressly granted to you herein are reserved by Swimnerd.
2.GENERAL LICENSE CONDITIONS
You agree not to: (i) commercially exploit the Software; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Software, any copies thereof, or any passwords or usernames of Swimnerd Services, without the express prior written consent of Swimnerd or as set forth in this EULA; (iii) make a copy of the Software (other than as set forth herein); (iv) make the Software publicly available or available on a network for use or download by multiple users; (v) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Software, in whole or in part; (vi) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Software by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (vii) scrape, build databases or otherwise create permanent copies of content returned from the Swimnerd Services.
The Software may require an internet connection to access the Software or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Software to operate properly, you may be required to have and maintain an adequate internet connection. By using the Software, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. SWIMNERD AND SWIMNERD’S LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT
LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SWIMNERD AND SWIMNERD’S LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SWIMNERD SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SWIMNERD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SWIMNERD SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SWIMNERD SERVICES OR THAT ANY ERRORS IN THE SWIMNERD SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY SWIMNERD OR SWIMNERD’S LICENSORS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
5. LIMITATIONS OF LIABILITY
IN NO EVENT WILL SWIMNERD, SWIMNERD’S AFFILIATES OR SWIMNERD’S LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SWIMNERD OR SWIMNERD’S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 5, SWIMNERD’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL SWIMNERD’S, SWIMNERD’S AFFILIATES’, SWIMNERD’S LICENSORS’ OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED FIFTY DOLLARS.
6. OTHER TERMS AND CONDITIONS
SUGGESTIONS: Swimnerd appreciates the interest shown shown by its customers and users who send Swimnerd unsolicited ideas and suggestions. If you have sent, or are considering, sending an idea to Swimnerd be aware that your idea or suggestion may have already been considered by Swimnerd and not been pursued, currently be under development, been targeted for patent protection, already be in commercial production, or be the subject of some other action already taken by Swimnerd. If you decide to send or make available to Swimnerd any idea or suggestion or other feedback related to Swimnerd’s products or otherwise, you agree to be bound by Swimnerd’s submission policy as set forth here.
EXPORT LAWS: You acknowledge and agree that the laws and regulations of the United States restrict the export or re-export of certain commodities and technical data originated in the United States. You hereby agree that you will not export or re-export the Software in any form in violation of the laws of the United States or any other jurisdiction. By installing or using the Software you represent and warrant to Swimnerd that you are not (i) a national or resident of any country or jurisdiction to which the United States has embargoed goods, or (ii) on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial and Prohibition Orders.
GOVERNMENT END USERS: This Software and related documents are “Commercial Items” as defined in 48 CFR Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as defined in 48 CFR Sections 12.212 or 227.7202. The Software and related documentation are being licensed to U.S. Government end users solely as “Commercial Items” and with only the rights granted to all end-users pursuant to this EULA.
TERMINATION: This EULA will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any Swimnerd Services.
EQUITABLE REMEDIES: You hereby agree that if the terms of this EULA are not specifically observed, Swimnerd will be irreparably damaged, and therefore you agree that Swimnerd shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
INDEMNITY: You agree to indemnify, defend and hold Swimnerd, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Swimnerd Services pursuant to the terms of the EULA; or (ii) your breach of this EULA.
GOVERNING LAW AND DISPUTE RESOLUTION. This EULA will be governed by the laws of of the Commonwealth of Virginia, as applied between Virginia residents within the jurisdiction of the Commonwealth of Virginia, without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply, and it is expressly excluded from this EULA.
END USER TERMS REQUIRED BY APPLE: You hereby acknowledge and agree that: (i) this EULA is concluded between you and Swimnerd, and not Apple, Inc .(“Apple”); (ii) Swimnerd and its licensors (and not Apple) are solely responsible for the Software, and any related maintenance or support; (iii) Apple has no responsibility to provide maintenance or support related to the Software; (iv) in the event that the Software fails to conform to any applicable warranty you may apply to Apple for a refund of any purchase price paid for the Software; (v) to the maximum extent permitted by applicable law Apple has no other warranty obligations whatsoever with respect to the Software; (vi) Apple is not responsible for addressing any claims that you may have arising out of your use of the Software; (vii) Apple has no responsibility for investigating, defending, settling or discharging any third-party claim that the Software infringes such third-party’s intellectual property rights; and (viii) Apple and its subsidiaries are third-party beneficiaries of this EULA, and that by accepting this EULA you acknowledge and agree that Apple has the right, and will be deemed to have accepted the right, to enforce this EULA against you as a third-party beneficiary. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo or that has been designated as a “terrorist supporting country” by the U.S. government; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT info@Swimnerd.com