FOOTER NAVIGATION BAR
Terms and Conditions
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.
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.
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
or bypass our robot exclusion headers or other
measures we may use to prevent or restrict access to the web
We do not sell or rent your personal information to third parties
for their marketing purposes. We use your information only as
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.
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, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this Agreement.
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
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,
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.
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.