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TERMS OF SERVICE

Date Last Modified: August 2023

The GoSwim website (the “Website”), the GoSwim mobile application (the “App”), and the related online and mobile services (collectively with the Website and the App, the “Services”) are made available by GoSwim Productions, LLC, a Maryland limited liability company (“GoSwim”), subject to these Terms and Conditions (“Terms and Conditions”). This is a contract between you and GoSwim. You must read and agree to these terms before using the GoSwim Service. If you do not agree, you may not use the Service.

You must be 18 years or older to register for the Services. If you are less than 18 years of age and would like to register to use any part of the Services, please ask your parent or legal guardian (“Guardian”) to review and agree to these terms before you use any part of the Services or ask them to complete the purchase or registration on your behalf. If you download, access, use or register for the Service as a Guardian, you are accepting this Agreement individually and on behalf of each User under the age of eighteen (18) for whom you are the parent or legal guardian.

If you download, access, use, or register for the Service on behalf of an Organization (e.g. team, school, community group, etc.) or as a Team Administrator as described herein, “you” includes yourself individually and such Organization. You represent and warrant that you are a duly authorized representative of such Organization and have the authority to bind such Organization to this Agreement.

These Terms and Conditions apply to all Users, including Users who are simply viewing content available via the Service, Users utilizing free Services, and Users who have engaged for paid Services. These terms of Service shall apply to Team Administrators, Guardians, Evaluators (terms defined below), and Athletes recording performance on the Service (“Athletes” and, collectively with Team Administrators and Guardians, “Users,” “you” and through similar words such as “your,” etc.). Not all terms shall apply to all types of Users where specified in the Terms and Conditions.

By accessing any part of the Service, you are agreeing to the terms and conditions described below (the “Terms and Conditions”) AND THE TERMS AND CONDITIONS OF OUR PRIVACY NOTICE (the “Privacy Notice”), WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, you should not use the Service. If you are otherwise engaged with GoSwim for specific Services through a subsequent agreement, that agreement shall control and supersede these Terms and Conditions. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE APP OR CONTINUE TO ACCESS OR USE ANY PORTION OF THE SERVICES AND DO NOT REGISTER FOR AN ACCOUNT.

We reserve the right to refuse a User’s access to the Service for any reason, at our sole discretion. In addition, at our sole discretion, we may suspend or terminate a User’s account for any reason. Such termination of your account will result in your loss of access to the Service. We will not be liable for any decision to suspend, terminate or refuse service under any circumstances.

The Service is controlled and offered by us from our facilities in the United States of America. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

  1. Compliance. To ensure you remain in compliance with these Terms and Conditions, GoSwim recommends reviewing the current Terms and Conditions each time you access or use the Services. All access to and use of the Services, Accounts and the materials, content, information and data contained on or provided through the Services and Accounts are subject to compliance with these Terms and Conditions and all applicable laws, rules and regulations. If you have any questions or comments regarding these Terms and Conditions or the Services, please contact GoSwim at the contact information listed below.

  2. General Use. The Services are made available, subject to these Terms and Conditions, to allow you to (i) obtain information about the Services, (ii) register for an Account, and (iii) engage with the various interactive properties available on the Service. Subject to these Terms and Conditions, GoSwim grants you a limited, non-exclusive, non-transferable and revocable license to download, access and use the Services solely for the applicable purposes described in these Terms and Conditions and for your personal, non-commercial benefit. Except as otherwise expressly set forth herein, you shall have no other rights to the Services, and no other rights shall be implied.

  3. Visitors to the Service and Account Creation. You may be able to visit certain public sections of the Services without identifying yourself or providing personal information. In order to access some features of the Services, you are required to register with the Services and select a username and password (create an “Account”). By registering for an Account, you represent and warrant that all registration information you submit is truthful and accurate. You may not have more than one (1) Account without GoSwim’s permission and you must access the Service and non-public portions of the Website and App through your Account. The security and confidentiality of your Account username and password is your sole responsibility. You shall ensure that no unauthorized person shall have access to your Account, username, or password and shall immediately notify GoSwim of any unauthorized access or use of which you become aware. You agree to bear all responsibility and liability for all actions under or through your Account as well as all fees and/or charges incurred from the use of your Account, whether authorized or unauthorized. You may update your Account by changing the Account settings.

  4. Individual Accounts and Data. All of your information and data provided to GoSwim in connection with registering for your Account (“Registration Data”) must be true, accurate, current, and complete at all times, and it is your responsibility to immediately update your Registration Data should any changes occur in order to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, or incomplete, or if GoSwim has reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, GosSwim has the right to suspend or terminate your Account as described in these Terms. If you are registering for Accounts of behalf of others (e.g., an Team Administrator registering on behalf of Athletes or Guardians), you warrant that the appropriate permissions and authorizations have been received prior to such registration.

    Notwithstanding anything to the contrary, you hereby authorize GoSwim and its affiliates, contractors and suppliers to use, copy, sublicense and disclose Registration Data (i) as part of providing the Services, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of GoSwim’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, and (iv) as permitted by GoSwim’s Privacy Notice. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your User Registration Data, including, without limitation, to grant the foregoing rights to GoSwim and its affiliates, contractors and suppliers. If you provide GoSwim your email address, you hereby consent to and authorize GoSwim to (a) send notices regarding the Services to such email address, instead of notice by other means such as mail, and (b) send other messages to such email address, such as changes to features of the Services and special offers (collectively, “Other Messages”). If you do not want to receive Other Messages, you may opt out in your Account settings. Opting out of receiving Other Messages may prevent you from receiving email messages regarding updates, changes to the Services or offers.

  5. Team Accounts and Data. GoSwim offers the opportunity for Team Administrators to create teams on the Service. Members of your team, regardless of User type, are considered Athletes. If you create a team, you will be the Team Administrator by default, but you may choose to appoint additional Team Administrators. Depending on the age of the Athletes you invite to the Service, you may invite the Athlete directly (if over the age of 18), or you may invite the Athlete’s Guardian to create an account. Unless an Athlete or Guardian already has a GoSwim Account, as Team Administrator, you are solely responsible for obtaining any necessary rights, authorizations, and consents with respect to the information you submit about Athlete or Guardian Users (“Team Registration Data”) and solely responsible for the actions of any other Team Administrators on the Service or within the team. In addition, all of the information and data provided to GoSwim in connection with Team Registration Data must be true, accurate, current and complete at all times. You must immediately update any Team Registration Data within your control to keep it true, accurate, current and complete. By providing Team Registration Data to GoSwim, you hereby authorize GoSwim and its affiliates, contractors, and suppliers to use, copy, sublicense and disclose Team Registration Data (i) as part of providing the Services as described in this Agreement, (ii) if required by applicable law, where necessary to enforce this Agreement and/or to protect any of GoSwim’s or other parties’ legal rights, (iii) in an aggregated form which does not include identifying information, and (iv) as permitted by GoSwim’s Privacy Policy.

  6. GoSwim Marketplace GoSwim partners with a network of experts to review and evaluate Athletes swimming skills (“Evaluators”) who make themselves available to Athletes via the GoSwim Marketplace. The Evaluator-Athlete relationship, as well as all information (documented or verbal) that the Althletes/Guardians shares with an Evaluator as part of the relationship, is bound to confidentiality but is not considered a legally confidential relationship (as would be protected by a law/regulation, like a doctor or attorney). The Evaluator agrees not to disclose any information pertaining to the Athlete without the Athlete or Guardian’s written consent. The Evaluator will not disclose the Athlete’s name as a reference without the Athlete or Guardian’s consent. Confidential information does not include information that: (a) was in the Evaluator’s possession prior to its being furnished by the Athlete/Guarduan; (b) is generally known to the public or in the swimming industry; (c) is obtained by the Evaluator from a third party, without breach of any obligation to the Athlete; (d) is independently developed by the Evaluator without use of or reference to the Athlete’s confidential information; or (e) that the Evaluator is required by law to disclose.

    • Athletes/Guardians. You are not obligated to engage with Evaluators on the GoSwim Marketplace as a part of the services. Evaluators are not employees, contractors, or otherwise affiliated with GoSwim, GoSwim merely provides the GoSwim Marketplace to facilitate connections between Athletes and Evaluators. While Evaluators may provide background on their expertise on the GoSwim Marketplace, by engaging in the GoSwim Marketplace, you acknowledge and understand that GoSwim does not confirm whether Evaluators are licensed, certified, or otherwise credentialed in coaching, fitness, or any other professional classification, and GoSwim offers no such licenses or certifications. You agree that GoSwim is not liable for any actions or inactions, or for any direct or indirect result of your interactions with Evaluators on the GoSwim Marketplace. You agree that GoSwim is not providing health, medical, or other licensed professional services through the GoSwim Marketplace. You should not provide Protected Health Information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”), to GoSwim. The degree to which interactions with Evaluators are occurring on the GoSwim platform, GoSwim agrees to maintain confidentiality as part of the relationship formed through the GoSwim Marketplace, however this relationship is not considered a legally confidential relationship. GoSwim agrees not to disclose any of your information provided on the GoSwim Marketplace without your consent. No assurances offered in this section apply to Evaluators.
    • Evaluators: In addition to these Terms, as an Evaluator, you may have engaged with GoSwim under a separate, written agreement. Such agreement is separate from these Terms, and in the event such agreement conflicst with these Terms, that agreement shall control. Absent an agreement that conflicts, these Terms shall apply in full to your relationship with GoSwim.

  7. Fees/Compensation

    • Fees. We reserve the right, at any time, to change any fees or charges for Users (or to begin charging fees for any free service), provided that such changes will not apply to fees or charges paid prior to the time of the change. We will charge you sales tax as applicable to the Service or any order placed through the Service, based on your billing address. In addition, you will be responsible for all other taxes, levies, duties or similar charges, only excluding taxes based on our income.
    • Compensation. We reserve the right, at any time, to modify compensation for Users, provided that such changes will not apply to compensation for work completed prior to the time of the change. GoSwim will not withhold for income or social security taxes payable by or relating to User or any contracted personnel, and User agrees to pay such taxes directly to the appropriate taxing authority, as applicable. Similarly, GoSwim will not provide worker's compensation benefits or any form of insurance or other fringe benefits customarily furnished employees to any Interviewer or other contracted personnel. Each Party bears responsibility for its own payment(s) of all taxes applicable to its earnings hereunder.

  8. User Content. The Services may contain User-generated or provided data, content, and materials, including but not limited to User Generated Content and Athlete Videos, as described in the Privacy Notice(“User Content”). User Content is the sole responsibility of the User that submitted that User Content. GoSwim does not control User Content generated or provided by Users and is under no circumstances responsible or liable in any way for any User Content that is made available through the Services. GoSwim does not endorse any User Content, and does not warrant or guarantee the integrity, truthfulness, accuracy or quality of any User Content. GoSwim reserves the right (but is not obligated) to edit or remove any User Content in whole or part, at any time and for any or no reason. You agree that GoSwim is not liable for any loss or damage of any kind resulting from availability, access and/or use of any User Content. You further agree that the User Content that you may generate or provide through the Services shall be truthful and not misleading. You acknowledge and agree that your submitted User Content will be made available to other Users of the Services (subject to the features of the Service which may restrict what Users can view and access your Content). You hereby grant to GoSwim and its affiliates, contractors, and suppliers a nonexclusive, perpetual, irrevocable, world-wide, royalty-free, assignable and sublicensable (through multiple tiers), license to reproduce, copy, use, host, store, sublicense, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, you submitted User Content and your name, voice and likeness (to the extent they are part of the User Content), (i) in connection with the Services, as specified under Third Party Licenses and/or for the interoperation of any third party products, (ii) if required by applicable law, where necessary to enforce these Terms and Conditions and/or to protect any of GoSwim’s or other parties’ legal rights, (iii) in an aggregated form which does not include your identifying information, and (iv) as permitted by GoSwim’s Privacy Notice. You are solely responsible to obtain any necessary rights, authorizations and consents with respect to your submitted User Content, including, without limitation, to grant the foregoing rights to GoSwim and its affiliates, contractors and suppliers.

    You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets, or other confidential proprietary information, and trademarks or service marks used in an infringing fashion); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any team, school, sport, league, or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of privacy. GoSwim reserves the right, but is not obligated, to reject and/or remove any User Content that GoSwim believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

    While the relationship between Team Administrators, Evaluators, and Guardians/Athletes is not governed by these Terms and Conditions, Team Administrators and Evaluators agree that any User Content that could be classified as the personal information of a Guardian or Athlete (see Privacy Notice), including, but not limited to, Athlete Videos recorded by the Team Administrator or viewed by the Evaluator, will be deleted from a Team Administrator or Evaluator account at the request of the Athlete/Guardian. GoSwim reserves the right to, though it is not obligated to, suspend or terminate a Team Administrator or Evaluator account for failure to delete such Athlete Videos upon request. Nothing in this paragraph, or these Terms and Conditions, makes GoSwim liable or responsible for the action or inaction of a Team Administrator.

  9. Releases. You acknowledge and agree that (i) you are solely responsible and liable for your interactions with other Users of the Services, (ii) GoSwim does not control the acts, omissions, policies or procedures of other Users of the Service. Without limiting the foregoing, you understand the risks associated with the access to and use of the Services and any User Content and other data, content and materials made available through the Services, and acknowledge that you are using the Services and such other data, content and materials at your own risk and that you are personally responsible for verifying their suitability for your needs through your own investigation. To the maximum extent permitted by law, GoSwim is not liable for, and you hereby waive, release, relinquish and forever discharge GoSwim, its employees, members, managers, governors, suppliers, agents, contractors, affiliates, representatives, successors and assigns (collectively, the “GoSwim Parties”), from any and all claims, counterclaims, demands, causes of action, suits, liabilities, injuries to person or property (including, but not limited to, death, incapacity and disability), damages, losses, costs and expenses, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, arising out of or related to (a) your access to and use of the Services, (b) access to and use of any User Content and other data, content and materials made available through the Services, (c) and your interactions with other Users of the Services. You agree to not sue GoSwim and the other GoSwim Parties, or assist any other person or entity in any suit against GoSwim and the other GoSwim Parties, with respect to any matters released in this Section. The terms of this release shall also apply to any of your relatives, next of kin, heirs, beneficiaries, employers, successors or assigns who assert or attempt to assert any claims on your or their behalf.

  10. Ownership and Intellectual Property. Except for certain User Content as described herein, all material included on the Service, including (without limitation) the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. You acknowledge and agree that as between you and GoSwim, GoSwim is and shall remain the exclusive owner of the Services, GoSwim’s data, information, and Content (expressly excluding User Content as otherwise described in these Terms and Conditions), and all patent, copyright, trade secret, trademark and other intellectual property rights therein. In addition, the compilation and presentation of the Content on the Service is subject to copyright owned exclusively by us. Content on the Service may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without our prior written consent. We reserve all rights not expressly granted in and to the Service and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Content obtained through the Service for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein. You shall not challenge or assist any third party to dispute or challenge GoSwim’s or its licensors’ ownership of such rights or the validity or enforceability of such rights. GoSwim expressly reserves all rights not expressly set forth in these Terms and Conditions.

    Access to the Services may include hardware, software, and other proprietary materials from GoSwim’s third party suppliers or patners that are subject to license rights, terms and restrictions (collectively, “Third-Party Licenses”). In such event, your rights to the Services are expressly subordinate and subject to the Third-Party Licenses and you must comply with Third-Party Licenses. If GoSwim’s rights provided by a third-party supplier are limited, suspended or terminated for any reason, your rights shall also be so limited, suspended or terminated. To the extent of any conflict between the terms of these Terms and Conditions and the terms of a Third-Party License, the terms of the Third Party-License shall control with respect to the applicable third-party product.

    If you find or suspect intellectual property infringement with respect to the Services or User Content, believe that the Services or any User Content otherwise violate these Terms and Conditions, or have questions, complaints or claims regarding the Services, please immediately notify GoSwim using the contact information located below. Upon receiving such information, GoSwim will investigate the matter, in its sole discretion.

  11. Prohibited Uses. In addition to uses otherwise prohibited by GoSwim, these Terms and Conditions or applicable law, you shall not, and you shall not allow any third party to, do any of the following:

    • Download, access, use or register for the Services if you are under eighteen (18) years old.
    • Change or delete any copyright or proprietary notices from the Services.
    • Use the Service other than as permitted by these Terms and Conditions and that you will not use the Service in a manner inconsistent with the original intent of its design.
    • To impersonate or attempt to impersonate GoSwim, a GoSwim employee, another authorized User, or any other person or entity.
    • Access or use the Services to send unsolicited commercial messages to any person, or to threaten, harm or harass another User’s Account, use and/or access of the Services, including, but not limited to, attempting to gain access to another User’s Account.
    • Access or use the Services by artificial means or in a manner that, in GoSwim’s sole discretion, would inflict an excessive load on GoSwim’s or its suppliers’ hardware or software.
    • Post, upload or transmit: (i) any data, content or materials meant to market or advertise services or products that are competitive with the Services, solicit any other Users of the Services for such purposes and/or use data, content or materials gathered from the Services for such purposes, (ii) any data, content or materials of any type that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret or any proprietary or other right of GoSwim or a third party, (iii) any data, content or materials that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or otherwise violate the rights of GoSwim or a third party, and/or (iv) any disabling code (defined as computer code designed to interfere with the normal operation of the Services or GoSwim’s or a third party’s hardware or software) or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Services or GoSwim’s or a third party’s hardware or software.
    • Use the Services for any benchmarking, monitoring or testing availability or performance, or any other competitive use, including, but not limited to, creating services, products or software that are substantially similar to the Services.
    • Decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization), modify or create a derivative work of the Services by any means whatsoever.
    • Distribute, disclose or allow use of any portion of the Services or your Account in any format through any timesharing device, service bureau, network or by any other means, to or by any third party.
    • Use or access any data, content or materials for any purpose or in any manner other than real-time viewing (which prohibits, for example, screenshots, downloading and storing) unless expressly permitted by the features of the Services.
    • Use or access the Services or any data, content or materials provided through the Services in violation of international, federal, state or local law or other applicable rules or regulations (including, without limitation, any laws regarding the export of data or software to and from the US and other countries). If you access the Services from outside the United States, you do so at your own risk and responsibility for compliance with laws of your jurisdiction.
    • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determine by us, may harm GoSwim or Users of the Service or expose them to liability.

  12. Accessibility and Updates. You are solely responsible for providing, maintaining and ensuring compatibility with the access requirements for the Services, and all hardware, software, electrical or other physical requirements for use of the Services, including, without limitation, mobile devices, telecommunications and internet access, connections, web browsers or other equipment, programs and services required to download, access and use the Services. To use the App, you must have a compatible mobile device and GoSwim does not guarantee that the App will be compatible with any specific mobile device. You are solely responsible for your mobile device data or related charges. GoSwim may from time to time issue upgraded versions of the App and may automatically update the version of the App that you are using.

  13. Third Party Content and Links. The Service may contain links to third party content and other third-party websites that are not owned or controlled by GoSwim. Links are provided to online Users solely as a convenience and our inclusion of such links does not imply any endorsement of the information by GoSwim. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, features, services, information or other materials on or available from such sites or resources, or any websites that they may link to (collectively, “Third-Party Content”). We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Content.

  14. Warranties. You represent and warrant that (i) these Terms and Conditions constitute your legal, valid and binding obligation enforceable against you in accordance with their terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) you have all requisite authority to enter into these Terms and Conditions, (iii) your agreement to these Terms and Conditions and performance or compliance with the terms of these Terms and Conditions will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which you or your affiliates are bound or to which your properties are subject, (iv) you are the lawful owner of any submitted User Content and your Registration Data, or to the extent you are not the lawful owner, you have all rights necessary for you to provide, upload and make available in submitted User Content and your Registration Data and license it as specified herein, and (v) your submitted User Content and your Registration Data will not violate or in any way infringe on any patent, copyright, trade secret, trademark, intellectual property or other rights of a third party.

  15. Termination. Access to the Services is provided at the discretion of GoSwim. GoSwim has the right at any time, with or without prior notice, to suspend or terminate your access to the Services or your Account, and to refuse any and all current or future use of all or any portion thereof, for any reason, including, but not limited to, if GoSwim believes that you are in violation of any of the provisions of these Terms and Conditions, your Account is being used without your authorization, or the information you have provided is inaccurate, not current or incomplete. GoSwim shall also have the right, but not the obligation, at any time to change or discontinue any aspect or feature of the Services and/or change or remove any of the User Content from the Services, in its sole discretion. In the event you desire to terminate your Account you may do so through the Service or by contacting GoSwim as set forth below. Upon termination of your Account, all of the information associated with your Account may be retained or deleted without notice, consistent with applicable law. GoSwim shall have no liability for such deletion.

  16. Indemnification. To the fullest extent permitted by law, you shall indemnify, defend and hold GoSwim and the other GoSwim Parties harmless from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees, disbursements and court costs prior to trial, at trial and on appeal) arising out of or resulting from, or alleged to result from (i) your breach of these Terms and Conditions, (ii) your access to and use of the Services, and/or (iii) your Content and your Registration Data; provided, the foregoing provisions of this Section shall not apply to the extent such losses, costs and expenses arise out of the gross negligence or willful misconduct of GoSwim.

  17. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, GoSwim DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) WITH REGARD TO THE SERVICES, USER CONTENT OR ANY OTHER DATA, CONTENT AND MATERIALS CONTAINED IN OR PROVIDED THROUGH THE SERVICES. THE SERVICES AND USER CONTENT ARE PROVIDED ON AN “AS IS” BASIS. IF YOU ARE DISSATISFIED WITH THE SERVICES, USER CONTENT, THESE TERMS AND CONDITIONS OR ANY PORTION OF THE FOREGOING, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. GoSwim DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS.

  18. Liability. SUBJECT TO THE OTHER LIMITATIONS AND DISCLAIMERS IN THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GoSwim OR ANY OTHER GoSwim PARTIES BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, THE SERVICES OR USER CONTENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES EXCEPT TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY YOU, NOT TO EXCEED ONE HUNDRED AND NO/100 DOLLARS ($100.00) OR THE FEES PAID FOR THE SERVICE OVER THE PAST 12 MONTHS, whichever is greater. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any of your claims arising in connection with these Terms and Conditions, the Services or User Content must be brought within one (1) year of the date that the event giving rise to such action occurred.

  19. Force Majeure. GoSwim shall not be responsible for delays or failures of performance resulting from acts beyond its reasonable control. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, third party service providers, lockouts, riots, acts of war, acts of terror, epidemics, government regulations, fire, communication line failures, power failures, earthquakes and other disasters.

  20. Personal Information. GoSwim may collect your personal and non-personal information when you download, register for, access and/or use the Services. You agree that GoSwim may collect, process, transfer, use and disclose your information in accordance with GoSwim’s Privacy Notice which is incorporated herein by reference and deemed a part hereof.

  21. Feedback. If you submit any ideas, concepts, feedback or related information concerning the Services to GoSwim through the Services or by other means, you hereby grant, and/or warrant that the owner of such content or intellectual property has expressly granted to GoSwim, a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, transferable, sublicensable (through multiple tiers) license to reproduce, copy, use, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, such content or intellectual property in any media or medium, or any form, format or forum now known or hereafter developed.

  22. Assignment. You may not assign or transfer these Terms and Conditions, or any of your rights or obligations hereunder, without the prior written consent of GoSwim, and any attempted assignment or transfer without GoSwim’s prior written consent shall be null and void. GoSwim may assign these Terms and Conditions to an affiliate or the surviving entity or its successor in the event of its merger or the sale of all or substantially all of its assets. All of the terms and provisions of these Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective personal representatives, estates, heirs, successors and permitted assigns.

  23. Governing Law. These Terms and Conditions shall be governed by, construed and enforced according to the laws of the State of Maryland, without regard to its conflict or choice of law principles. Any action arising out of or relating to these Terms and Conditions shall be brought only in the state or federal courts of Maryland, and all parties expressly consent to such courts’ jurisdiction and irrevocably waive any objection with respect to the same.

  24. Contact Information. Except as otherwise provided, notices under this Agreement shall be in writing and shall be deemed given three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, or when received via electronic mail, in each case to the respective party as set forth below.

    To GoSwim: Go Swim Productions, LLC
    Attn: Legal Notices
    135 Gorman St., 2nd Floor
    Annapolis, MD 21401
    Email: [email protected]
    To you: As specified in your Account information.

  25. Miscellaneous. Section headings are not to be considered part of these Terms and Conditions. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof. Except as otherwise set forth herein, if any provision of these Terms and Conditions is found void or unenforceable, this will not affect the validity of the balance of these Terms and Conditions, which shall remain valid and enforceable, and the invalid or unenforceable provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. Except as stated herein, nothing in these Terms and Conditions is intended to confer upon any person other than the parties hereto, and their respective personal representatives, estates, heirs, successors and permitted assigns, any rights or remedies under or by reason of these Terms and Conditions. Any and all rights and obligations contained in these Terms and Conditions which by their nature and/or context are intended to survive termination of these Terms and Conditions shall so survive, including, but not limited to, perpetual license grants, indemnification, limitations of liability and disclaimers. No breach or right under these Terms and Conditions may be waived unless in writing signed by the waiving party.

  26. App Store. This Section 27 only applies to the App. You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, including, without limitation, the Apple App Store or Google Play (each an “App Store”).

    • These Terms and Conditions are only between you and GoSwim, not an App Store. As between GoSwim and an App Store, GoSwim is solely responsible for the App and its content.
    • your license to the App set forth in Section 3 above is limited to use of the App on products that you own or control and as permitted by the applicable App Store Terms and Conditions or terms of service.
    • To the extent that GoSwim is responsible for any maintenance or support services with respect to the App under applicable law, you acknowledge that no App Store has any obligation whatsoever to furnish any such services.
    • The App is provided on an “AS-IS” basis. To the extent that any product warranties are not effectively disclaimed by these Terms and Conditions, GoSwim is solely responsible for any such product warranties. In the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Store, and, if the App was purchased, such App Store may refund the purchase price for the App to you. To the maximum extent permitted by applicable law, no App Store will have any other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty shall be GoSwim’s sole responsibility.
    • your claims are limited by these Terms and Conditions. To the extent you have any claims relating to the App, GoSwim, not any App Store, is solely responsible for addressing such claims, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection, privacy or similar legislation.
    • GoSwim shall not be obligated to indemnify, defend or hold you harmless from any third party claims relating to the App. To the extent that GoSwim is responsible to indemnify you under applicable law in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, GoSwim, not any App Store, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
    • 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 by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
    • Each App Store, including its subsidiaries, are third party beneficiaries of these Terms and Use, and upon your acceptance of these Terms and Conditions, each App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary.

  27. Changes to Terms and Conditions. GoSwim may modify these Terms and Conditions from time to time by posting an updated version of these Terms and Conditions and changing the “Date Last Modified” above. Such changes shall be effective immediately upon posting updated Terms and Conditions. If you continue to access or use the Services, you accept such modified terms. If you do not agree to such changes, do not continue to access or use the Services.