Last Updated: February 1, 2019
Contract between You and Us, Amendments and Termination
Supplemental terms and conditions may apply to some Services, such as rules for a particular competition, service or other activity, or terms that may accompany certain content or software accessible through the Services. Supplemental terms and conditions will be disclosed to you in connection with such competition, service, activity, content or software. Any supplemental terms and conditions are in addition to these Terms and, in the event of a conflict, prevail over these Terms.
We may amend these Terms at any time by posting the amended Terms to the Services on our website. Your use of the Services after the posting of such amended Terms shall be deemed to constitute your acceptance to the amended Terms. If you do not agree to the amended Terms, you must discontinue use of the Services.
We may immediately terminate these Terms with respect to you (including your access to the Services) if you fail to comply with any provision of these Terms. We may also terminate these Terms at any time, for any reason, and without any requirement of notice to you, including in the event we stop offering the Services. Upon termination of these Terms, all licenses and other rights granted to you in these Terms will immediately cease. Any payment obligation which accrues prior to termination of these Terms and any other provisions of these Terms that by their nature and context are intended to survive the performance and termination of these Terms, including, but not limited to, those rights and obligations set forth under “Proprietary Rights,” “Limited License,” “Disclaimer; Limitation of Liability,” “User Generated Content,” “Governing Law and Venue,” and “Electronic Communications” will survive the termination of these Terms.
The Services are for your personal, noncommercial use and are intended for informational, educational, and entertainment purposes only. The Services do not constitute legal, financial, professional, or medical advice or diagnosis and cannot be used for such purposes. We may terminate the offering and provision of some or all of the Services at any time, without penalty or liability to you.
The Services are general purpose services and are not directed towards children under the age of thirteen (13). By accessing or using the Services, including by registering an account with us, you represent and warrant that you are eighteen (18) years of age or older (or age of majority if higher in your place of residence). If you are under the age of eighteen (18) or age of majority if higher in your place of residence, you should use the Services only with the involvement of a parent or guardian.
The Services are our copyrighted property or the copyrighted property of our licensors or licensees and all trademarks, service marks, trade names, trade dress and other intellectual property rights in the Services are owned by us or our licensors or licensees. Except for the licenses and rights expressly granted under these Terms, no right, title, or interest in or to the intellectual property rights associated with the Services is granted to you, whether by implication, estoppel, or otherwise. You may own the physical media on which elements of the Services are delivered to you, but we retain full and complete ownership of the Services. You agree not to take any actions inconsistent with our ownership of the Services or the intellectual property rights associated therewith, and you agree that any improvement, enhancement, or modification relating in any way to the Services is owned by us without any further consideration, regardless of which party conceives of or develops such improvement, enhancement, or modification.
If a Service is configured to enable the use of software, content, virtual items or other materials owned by or licensed to us, we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use such software, content, virtual item or other material for your personal, noncommercial use only.
You may not copy, modify, decompile, reverse engineer, disassemble any Service or otherwise reduce any Service to a human-readable form; remove identification, copyright, trademark, service mark or other proprietary notices; or access or use any Service in an unlawful or unauthorized manner. Further, you agree not to: (i) use the Services to perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded by, or downloaded by Swimmingly or other users any software viruses, worms, Trojan horses, time bombs, trap doors, or any other computer code, files, or programs or repetitive requests for information designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Services; (ii) attempt to gain unauthorized access to any component of the Services or its related systems and networks, or to attempt to circumvent, disable, or disrupt any mechanism in the Services intended to limit use of such Services; (iii) use any robot, spider, scraper, or other automated means to access the Services and/or collect content for any purpose; (iv) collect personally identifiable information from the Services; or (v) use the Services after any termination of the licenses and rights granted under these Terms. You agree that at any time upon reasonable written notice, we may audit your use of the Services and your books and records for the purpose of verifying your compliance with these Terms.
Disclaimer; Limitation of Liability
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY: (A) IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR USE; AND (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WE DO NOT WARRANT THE SERVICES WILL MEET YOUR REQUIREMENTS NOR DO WE GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
WE DO NOT WARRANT THAT OPERATION OF OR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER THE INTERNET AND OTHER COMMUNICATIONS FACILITIES, AND THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, INCLUDING WITH RESPECT TO ANY VIRUS OR HARMFUL CODE RESULTING THEREFROM. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
WE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION FOR OR ARISING FROM YOUR USE OF A PARTICULAR SERVICE EXCEED THE AMOUNT OF FEES, IF ANY, YOU HAVE PAID TO US FOR SUCH SERVICE OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE OCCURRENCE OF THE APPLICABLE DAMAGE OR LOSS, OR ACCRUAL OF THE CAUSE OF ACTION.
THESE DISCLAIMERS AND LIMITATIONS DO NOT PURPORT TO LIMIT LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAWS.
User Generated Content
You represent and warrant that your User Generated Content conforms to these Terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these Terms. You are solely responsible for your User Generated Content, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, and all consequences of submitting User Generated Content to the Services. You agree to indemnify and hold us harmless from any demands, loss, liability, claims or expenses (including attorney’s fees) made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content.
We have the right but not the obligation to monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through a Service, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to these Terms, without prior notice to you.
Some Services may permit or require you to create an account to participate or to secure additional benefits. You agree to provide and maintain accurate, current and complete information, including your contact information for notices and other communications from us and your payment 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, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian. We may suspend or terminate your account and your ability to use the Services if you engage in, encourage or advocate for illegal conduct, or if you fail to comply with these Terms or any supplemental terms.
Passwords and Security
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 promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving the Services.
You agree to install, utilize, test, and evaluate promptly those updates that are reasonably necessary for the functioning of the Services that may be provided by us from time to time.
Live Events Disclaimer
At our discretion, we offer live events that sometimes feature special guests or athletes. The date and time of an event, as well as any featured guest or athlete, can be subject to change at anytime.
Claims of Copyright Infringement
We take copyright infringement seriously and have registered a Designated Agent with the United States Copyright Office pursuant to the Digital Millennium Copyright Act (“DMCA”). If you believe that your copyright has been infringed, please send us a notice to the following address containing the elements required under the DMCA:
These Terms, as the same may be amended from time to time in accordance with their respective terms, constitute the entire agreement amongst and between us and you pertaining to the Services, and no representation, warranty, affirmation of fact, promise or other statement not expressly set forth herein shall be binding on us or you.
In the event any one or more provisions of these Terms shall, for any reason, be held to be invalid, illegal, or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision of these Terms, and these Terms shall be interpreted and construed as if such invalid, illegal or unenforceable provision had never been contained therein.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. Any attempted assignment in violation of the foregoing will be null and void. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Governing Law and Venue
These Terms and any dispute, controversy, or claim arising under these Terms or by reason of the Services will be governed by the laws of the State of North Carolina and applicable federal laws. You agree that any action at law or in equity arising out of or relating to these Terms or the Services shall be filed, and that venue properly lies, only in the state or federal courts located in Wake County, North Carolina and you consent and submit to the exclusive personal jurisdiction of such courts for the purposes of litigating such action.
The communications between you and Swimmingly use electronic means. For contractual purposes, you: (i) consent to receive communications from Swimmingly in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Swimmingly provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.