Aquatic Animation for Analysis and Education

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Terms and Conditions

Content License
When you give us content (e.g., a personal video tape of you or another individual swimming or doing aquatic activities), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights you have in the content, in any media known now or in the future. We need these rights to host and display your customized animation.

Liability
You will not hold www.virtual-swim.com responsible for other users' actions or inactions, including things they post. You acknowledge that we are not a traditional web site. Instead, www.virtual-swim.com is a venue to allow anyone to view, post, compare, analyze, learn, instruct and enjoy customized animation of individuals swimming and doing aquatic activities, at anytime, from anywhere, in a variety of pricing formats. We have no control over and do not guarantee the quality or legality of the content that we receive from our customers (e.g., video tape).

We do not transfer legal ownership of the customized animations to you, and nothing in this agreement shall modify the governing provisions of California Commercial Code 2401(2) and Uniform Commercial Code 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. That is, we post your customized animation on www.virtual-swim.com so we can freely view your animation at any time from any online access point. However, we cannot guarantee continuous or secure access to our services, and operation of our web site may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions. We are not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of our web site. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Regardless of the previous paragraph, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100.

Release
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

Access and Interference
The web site may contain robot exclusion headers. Much of the information on the web site is updated on a real-time basis and is proprietary or is licensed to www.virtual-swim.com by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the web site for any purpose without our express written permission.

Additionally, you agree that you will not:

  • take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
  • copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from the web site without the prior expressed written permission of www.virtual-swim.com and the appropriate third party, as applicable;
  • interfere or attempt to interfere with the proper working of the web site or any activities conducted on the web site;
  • or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the web site.

Privacy
We do not sell or rent your personal information to third parties for their marketing purposes. We use your information only as described in the Privacy Policy. We view protection of users' privacy as a very important web site principle. We store and process your information on computers that are protected by physical as well as technological security devices. You can access and modify the information you provide us and choose not to receive certain communications by signing-in to your account. We use third parties to verify your credit card information. For a complete description of how we use and protect your personal information, see the Privacy Policy. If you object to your Information being transferred or used in this way please do not use our services.

Indemnity
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.

No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Notices
Except as explicitly stated otherwise, legal notices shall be served to the email address you provide to us during the registration process. Alternatively, we may give you legal notice by airmail to the mailing address provided during the registration process.

Resolution of Disputes
If a dispute arises between you and www.virtual-swim.com, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and www.virtual-swim.com agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly via email. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

  • Law and Forum for Disputes - This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against www.virtual-swim.com must be resolved by a court located in Orange County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Orange County, California for the purpose of litigating all such claims or disputes.
  • Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
  • Improperly Filed Claims - All claims you bring against www.virtual-swim.com must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, www.virtual-swim.com may recover attorneys' fees and costs up to $1,000, provided that we have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

General
When using particular services on our web site, you are subject to any posted policies or rules applicable to services you use through the web site, which may be posted from time to time. All such policies or rules are hereby incorporated into this Agreement.

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In our sole discretion, we may assign this Agreement in accordance with the Notices Section. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

We may amend this Agreement at any time by posting the amended terms on the web site. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted on the web site. This Agreement may not be otherwise amended except in a writing signed by us. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.

You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at +1 (800) 952-5210.

 

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