TERMS AND CONDITIONS OF USE FOR SWIMWARE
Last Updated: December 12, 2019
Welcome to SwimWare. SwimWare is a website and software solution for schools and other organizations that organize youth activities. Among other things, SwimWare provides class management, scheduling, staff scheduling, account receivables reports and a parent portal (the “Services”). Your use of SwimWare is conditioned on your acceptance of these terms and conditions as they are updated from time to time (the “Terms”). Your use of SwimWare constitutes your agreement to all such Terms. Please review the following Terms carefully. If you do not agree to these Terms, you should immediately cease using SwimWare. Your continued use of SwimWare after we notify you of updates or changes to these Terms constitutes your agreement to the Terms as updated.
SwimWare and the Services are provided by Swim-in Zone, Inc. These Terms are in addition to the general terms and conditions found on our website https://swimwarescheduling.com/terms-conditions.
- Acceptance of Agreement. You agree to the Terms. These Terms constitute the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site and the Services provided. These Terms may be amended by us at any time, without specific prior notice to you. Upon your receipt of notice of updates or changes to these Terms, your continued use of SwimWare and the Services constitutes your agreement to the updated Terms.
- Definition of Certain Terms.
- “Services” means the school management services offered by us through these Terms and SwimWare.
- “Site” means the SwimWare website and/or software application.
- “You” and “your” mean the school that enters into this Agreement.
- “We,” “us,” and “our,” refers to Swim-in Zone, Inc.
- “Agreement” means these Terms.
- “Business Day” is every Monday through Friday, excluding Federal holidays.
- “Scheduled Payment Date” is the day your payment account will be debited, unless the Scheduled Payment Date falls on a non-Business Day in which case it will be considered to be the previous Business Day.
- “Due Date” is the date your payment to us is due.
- Fees/Payment Scheduling. You agree to pay us the monthly fee then in effect for your use of SwimWare until your access is terminated or expires. The Due Date for your monthly usage fee and Scheduled Payment Date will be established when you register for the Services. If a payment is returned or rejected by the institution that holds your payment account, for any reason, you will be notified and a $50.00 returned payment fee will be automatically processed and charged to you. If the returned payment fee is returned or rejected, we may immediately terminate this Agreement and your use of SwimWare and continue to attempt to collect any past due fee and the returned payment fees. We are authorized to report the facts concerning the return or rejection to any credit reporting agency.
- Copyright/Intellectual Property. The content, organization, graphics, design, compilation and source code of SwimWare are protected under applicable copyright laws. SwimWare is a registered trademark. The copying, redistribution, use or publication by you of any such matters or any part thereof is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site and/or the Application. While you are a registered user of SwimWare we will allow you limited rights to use the SwimWare trademark to promote the use of the Services as described on the Site. By submitting, providing, posting, uploading, or sending User Information to us on or through the Site or Services, you grant us and our subsidiaries, successors and assigns, and third parties a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive, and fully transferable, assignable, and sublicensable right and license to use, copy, reproduce, analyze, create derivative works from, and incorporate in other works any User Information (in whole or part) in any form, media, or technology now known or later developed, for any purpose.
- Your Account/Use of SwimWare. You are responsible for maintaining the confidentiality of your SwimWare 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. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that SwimWare is not responsible for third party access to your account that results from theft or misappropriation of your account. SwimWare is designed for use by you and parents and legal guardians of children registered or interested in your school. SwimWare is not designed for use by children.
- Limited Right to Use. You are granted a limited, nonexclusive, non-transferable license to use SwimWare solely for the Services described during the Term of this Agreement. You may not republish, distribute, assign, sublicense, sell, prepare derivative works from or make other use of SwimWare. No part of any content, web-based form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use. Your limited license to use SwimWare automatically expires upon the expiration or termination of the Agreement.
- Indemnification. You agree to indemnify, defend and hold us and our employees, attorneys, agents, officers, affiliates, successors and assigns (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of this Agreement or use of the Site and/or Services.
- Nontransferable. Your right to use the Site and/or Services is not transferable. Any password or right given to you to obtain information or documents is not transferable.
- Disclaimer and Limits. THE SITE AND SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE SITE AND SERVICES MAY CONTAIN BUGS, SECURITY VULNERABILITIES, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE SITE AND SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE SITE AND THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. In no event shall our total aggregate liability to you exceed the greater of the total fees paid by you to us or $1,000.
- Termination/Access Restriction. SwimWare reserves the right, in its sole discretion, to terminate your access to the Site and the Services or any portion thereof at any time without notice. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provision of these Terms, including, without limitation, this Section. Either party shall have the right to terminate this Agreement by providing the other party with thirty (30) days advance written notice. This Agreement shall remain in effect and you shall have an obligation to pay the fees for use of SwimWare and the Services until this Agreement is terminated (the “Term”).
- User Information. You acknowledge and agree that you are solely responsible for all User Information you make available through the Site or the Services. By submitting, providing, posting, uploading, or sending User Information to us on or through the Site, you represent and warrant that: (i) the User Information is original to you; (ii) the User Information is accurate, truthful and does not violate anyone’s rights; (iii) we may freely use the User Information; (iv) you either own the User Information or have the rights necessary to grant us rights in the User Information; (v) our use of the User Information will not violate the rights of any third parties (for example, patents, copyrights, trademarks, trade secrets, moral rights or other intellectual property rights, or rights of publicity or privacy) or any applicable statutes, laws, rules, regulations, guidelines, or ordinances; and (vi) no payments of any kind shall be due to any third party. We are not responsible for maintaining any User Information that you provide to us, and we may delete or destroy any such User Information at any time and for any reason and without notice to you. Upon the termination of this Agreement, SwimWare will provide you with certain User Information entered into the Site in spreadsheet or other format selected by us in our sole discretion. We will have no further obligation to migrate data or assist with schedule management or transfers of User Information to you.
- Third Party Merchant Policies. All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on such sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.
- Links to other Websites. The Site may contain links to other websites. We are not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website on our Site does not imply approval or endorsement of the linked website by us. If you decide to leave our Site and access these third-party sites, you do so at your own risk.
- Refund and Termination Policy. If you wish to terminate this Agreement, you must do so by providing us with written notice at 4355 Saucon Creek Rd. Center Valley, PA 18034 (or such other address we might designate) or by calling 1-610-625-4848 to terminate your account by phone. SwimWare WILL NOT ACCEPT any other form of cancelation including but not limited to fax or email. Per Section 10 above, this Agreement will be terminated thirty (30) days after we received notice of termination and you are responsible for all fees due until the end of the Term. SwimWare does not allow for any type of refunds on fees after the initial thirty (30) days after registration. This Section 15 sets forth your sole and exclusive right to refund and return.
- Miscellaneous. This Agreement shall be treated as though it were executed and performed in Lehigh County, Pennsylvania, and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania (without regard to conflict of law principles). Any cause of action by you with respect to the Site and/or Services (and/or any information, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All legal proceedings arising out of or in connection with this Agreement shall be brought solely in a court of competent jurisdiction located in Lehigh County, Pennsylvania. You expressly submit to the exclusive jurisdiction of said courts and consent to extra-territorial service of process. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. SwimWare and the Services are only for use in the United States of America (“USA”). By registering for SwimWare you agree that your information and User Information will be transferred to and stored in the USA. If you object to transfer or processing of your information or User Information in the USA, do not enter into this Agreement.
- Technical Support. SwimWare will provide you with reasonable technical support services as described on the Site from time to time. You acknowledge and agree that Technical Support is intended to address specific problems experienced by you relating to the Services, and is not intended to train your employees or to support third party products. As of the date of this Agreement, Technical Support is available Monday through Friday, excluding recognized Federal holidays, from 9:00 a.m. to 5:00 p.m. prevailing Eastern Time.