PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING THE MYSWIMEDGE AND ITS RELATED WEBSITE, APPLICATION AND TOOLS. THIS IS INTENDED TO BE A BINDING AGREEMENT, ENFORCEABLE AGAINST YOU, AND BY CLICKING THE “ACCEPT” BUTTON BELOW, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN.
These Purchase Terms & Conditions (the “Agreement”) by and between MySwimEdge Inc., a Delaware corporation (“MySwimEdge”), and you as the identified customer that has accepted this Agreement (the “Customer“). This Agreement is entered into as of the day that the Customer clicks the “accept” button (the “Effective Date”).
Description of Services
WHEREAS MySwimEdge has developed a Sensor and an Application for swimmers and triathletes (the “MySwimEdge”). The MySwimEdge measures a swimmer’s individual performance and may gather other analytics and transmits that data (the “Data”) to the MySwimEdge application (the “App”) which is accessible on a smartphone. All an individual swimmer’s key performance metrics are calculated, logged, and tracked on the App through unique profiles (“Profiles”) which provide in-depth insight into an athlete’s performance over time; and
WHEREAS the Customer intends to purchase one or more MySwimEdge Packages or Sensors according to the electronic purchase confirmation or communication to which these Purchase Terms & Conditions are attached and have been accepted (the “Purchase Confirmation”).
The Data is for the personal and professional use only.
MySwimEdge is available for individuals 13 years or older. If you are under 13, please do not use the MySwimEdge App or Sensor. By accessing and using the MySwimEdge App, you represent and warrant that you are at least 13.
YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE STARTING ANY EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF ANY OF THE FOLLOWING APPLY TO YOU: · CHEST PAIN OR PAIN IN THE NECK AND/OR ARM; · SHORTNESS OF BREATH; · DIAGNOSED HEART CONDITION; · JOINT AND/OR BONE PROBLEMS; · IF YOU’RE TAKING ANY MEDICATIONS, ESPECIALLY CARDIAC AND/OR BLOOD PRESSURE MEDICATIONS; · HAVE NOT PREVIOUSLY BEEN PHYSICALLY ACTIVE; OR · DIZZINESS DO NOT USE THE PLATFORM IF THE FOLLOWING APPLIES TO YOU: · UNABLE TO SWIM – AS DEFINED BY THE INABILITY TO TREAD WATER IN DEPTHS GREATER THAN STANDING HEIGHT FOR AT LEAST TWO MINUTES IF NONE OF THESE APPLY TO YOU, YOU SHOULD NONETHELESS START ANY EXERCISE PROGRAM GRADUALLY AND SENSIBLY. IF YOU FEEL ANY OF THE PHYSICAL SYMPTOMS LISTED ABOVE WHEN YOU START YOUR EXERCISE PROGRAM, YOU SHOULD CONTACT YOUR PHYSICIAN IMMEDIATELY. THE INFORMATION AND MATERIALS CONTAINED ON THE PLATFORM ARE PROVIDED FOR EDUCATIONAL AND INFORMATIVE PURPOSES ONLY. MYSWIMEDGE ARE NOT ENGAGED IN RENDERING MEDICAL ADVICE OR RECOMMENDATIONS. THIS SITE IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND TREATMENT OR YOUR CONSULTATION WITH QUALIFIED PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS REGARDING YOUR INDIVIDUAL HEALTH NEEDS.
Waiver and Release
Please be advised that: · We make no representations, offer no assurances, and do not investigate any of our User’s backgrounds, morality, character, actions, or demeanor, and you hereby acknowledge that you assume the risk and any encounter or interaction with such persons. · As stated in greater detail below, we make no, and hereby disclaim all, representations, warranties, claims, and assurances as to any content posted by Users. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOURSELF AND YOUR HEIRS, NEXT OF KIN, SPOUSE, GUARDIANS, LEGAL REPRESENTATIVES, AGENTS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASING PARTIES”), AGREE THAT SUCH RELEASING PARTIES SHALL NOT HAVE ANY RIGHT OR CAUSE OF ACTION, AND HEREBY FULLY, FINALLY, AND FOREVER RELEASE, INDEMNIFY, DISCHARGE, AND ACQUIT MYSWIMEDGE AND ITS PAST, CURRENT, AND FUTURE MEMBERS, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENT ENTITIES, ATTORNEYS, PRINCIPALS, TRUSTEES, REPRESENTATIVES, AGENTS, PARTNERS, AFFILIATES, PREDECESSORS, SUCCESSORS, OPERATING PARTNERSHIPS, GENERAL PARTNERS, INSURERS, REINSURERS, AND ASSIGNS FROM ANY AND ALL CLAIMS, SUITS, OBLIGATIONS, COSTS, DAMAGES, LOSSES, CLAIMS FOR SUMS OF MONEY, CONTRACTS, CONTROVERSIES, AGREEMENTS, JUDGEMENTS, AND DEMANDS WHATSOEVER, RIGHTS, LIABILITIES, ACTIONS, AND CAUSES OF ACTION OF ANY NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, AT LAW OR IN EQUITY, FIXED OR CONTINGENT, WHICH SUCH RELEASING PARTIES NOW HAVE OR MY CLAIM TO HAVE IN THE FUTURE (COLLECTIVELY, “CLAIMS”) ARISING OUT OF, BASED UPON, ATTRIBUTABLE TO, OR IN CONNECTION WITH YOUR INTERACTION WITH OTHER USERS, ANY CONTENT (INCLUDING TRAINING VIDEOS) POSTED BY THE PLATFORM, AND ANY EXERCISE PROGRAM YOU MAY LEARN ABOUT OR EMBARK ON VIA THE PLATFORM. YOU HEREBY ACKNOWLEDGE AND AGREE THAT IT IS THE INTENTION OF THE PARTIES THAT THE FOREGOING RELEASE AND DISCHARGE SHALL BE EFFECTIVELY AS A BAR TO ALL CLAIMS OF WHATEVER CHARACTER, NATURE, AND KIND, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, HEREINABOVE SPECIFIED TO BE SO BARRED.
MySwimEdge contains material, such as data, software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of MySwimEdge (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. If you violate any part of the Agreement, your permission to access and/or use the Content, the Platform, and our Services automatically and you must immediately destroy any copies you have made of the Content. Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means.
No Warranties; Limitation of Liability
THE APP, THE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE PLATFORM, THE CONTENT, OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSIONS OF CERTAIN WARRANTIES OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR WARRANTIES AND OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE PLATFORM AND THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE PLATFORM. THE PLATFORM MAY CONTAIN INFORMATION ON PRODUCTS OR SERVICES WHICH ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE TO YOU. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
MySwimEdge App and Website may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use, or misuse of the Platform, the Content, or our Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
Compliance With Applicable Laws
The Platform and its servers are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.