PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
- Terms of Service
1.1 General Terms of Service
The Terms govern your access and use of our software applications, all collective content, resources and services for Clients (“Swimmers” “Clients”) and Service providers (“Coaches” “Instructors”) to find each other, connect with each other, and arrange services, as well as any other services or products we may offer from time to time. The Terms govern all use of Swim Buddies, whether you access it from our website at https://www.swim-buddies.com (including any subdomain or localized version) (the “Site”), our mobile applications and mobile websites, our online support offerings, or any other access point we make available to you.
By agreeing to these terms during the account sign-up process or accessing or using Swim Buddies without an account, you accept these terms. If you do not agree with these terms, you should not accept them, in which case you do not have the right to obtain information from or otherwise continue using this site, application or services.
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective when we post the modified Terms on Swim Buddies, unless otherwise required by applicable law. Your continued access and use of Swim Buddies after we post the modified Terms will constitute your consent to be bound by the modified Terms. In addition, when you use Swim Buddies, you agree:
- To use Swim Buddies only in a lawful manner and only for its intended purposes.
- Not to submit viruses or other malicious code to or through Swim Buddies.
- Not to use Swim Buddies, or engage with other users of Swim Buddies, for purposes that violate the law.
- Not to use Swim Buddies to arrange for the provision and purchase of services with another user, then complete transactions for those services outside of Swim Buddies.
- Not to use Swim Buddies for purposes of competing with Swim Buddies or to promote other products or services.
- Not to post reviews about Service Providers that aren’t based on your personal experience, that are intentionally inaccurate or misleading, or that violate these Terms.
- Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
- Not to post “spam” or other unauthorized commercial communications.
- To use Swim Buddies only for your own purposes, and not to impersonate any other person.
- Not to transfer or authorize the use of your account for Swim Buddies by any other person, or to engage in fraudulent transactions.
- Not to provide false information in your profile on, or registration for, Swim Buddies, or to create multiple or duplicate accounts.
- Not to interfere with our provision of, or any other user’s use of, Swim Buddies.
- Not to solicit another user’s username or password for Swim Buddies or any other sensitive personal information, including bank details.
By accessing and using Swim Buddies, you certify that you: (1) are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, Swim Buddies.
- For Clients, this means, among other things, that you will ensure, as required by local laws or regulations; that you have obtained and will maintain any mandatory insurance policies concerning the swimmer you entrust to Service Providers (and that such policies will benefit third parties, including Service Providers, to the same extent they benefit you).
- For Service Providers, this means, among other things, that you certify that you are qualified and legally eligible to provide Swim Related Services in the jurisdiction where you provide Swim Related Services; that you have complied and will comply with all laws and regulations that are applicable to you; that you have obtained all business licenses, business tax registrations, and permits necessary to provide Swim Related Services legally.
You acknowledge that Swim Buddies, is not responsible to ensure that all users have complied with applicable laws and regulations and will not be liable for a user’s failure to do so.
Your Swim Buddies account and your Swim Buddies account profile page will be created for your use of the site and application based upon the personal information you provide to us. You may not have more than one (1) active Swim Buddies account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. You agree that you have a right to use all the content included in your Swim Buddies account and accept full responsibility for any third-party copyright claims against such content. You are responsible for safeguarding your password and you agree that you will not disclose your password to any third party. Unless expressly authorized by a specific feature on Swim Buddies, you are not permitted to share your Swim Buddies account with anyone or allow others to access or use your Swim Buddies account. Swim Buddies may enable features, in our discretion, that allow others to take certain actions associated with your Swim Buddies account, on your behalf with your express authorization. You agree that you will take sole responsibility for any activities or actions under your Swim Buddies account. You will immediately notify Swim Buddies of any unauthorized use of your Swim Buddies account. By creating an account, you agree that the services may send you informational text (SMS) messages as part of the normal business operation of your use of the services. You may opt-out of receiving text (SMS) messages from Swim Buddies at any time by updating your profile setting and sending an email to contactswimbuddies@gmail.com indicating that you no longer wish to receive such messages, along with the phone number of the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the services and applications and any updates thereto. Swim Buddies does not guarantee that the services, or any portion thereof, will function on any particular hardware or devices. In addition, the services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
1.2 Modification
Swim Buddies reserves the right, at its sole discretion, to modify the site, application or services or to modify these terms, at any time. If we modify these terms, we will post the modification on the site or via the application and/or provide you notice of the modification by email. We will also update the “last updated” date at the top of these terms. You agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Swim Buddies prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Swim Buddies prior to the effective date of removal.
1.3 Termination/Suspension
You may terminate your agreement with Swim Buddies at any time by written notice directly to Swim Buddies at any time, though you will make every reasonable effort to honour all commitments made to other users prior to terminating your profile. Note that if you have any outstanding payment obligations, those will survive suspension or termination of your account.
Any failure to respect these terms and conditions may result in deactivation of your account, at Swim Buddies discretion. Efforts to use the services in a manner that is fraudulent or contrary to law will be pursued by Swim Buddies to the fullest extent allowable by civil or criminal law.
Without limiting our rights specified below, Swim Buddies may terminate this Agreement for convenience at any time by giving you thirty (30) days notice via email to your registered email address. Swim Buddies may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under these Terms, the Payments Terms, our Policies or Standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Swim Buddies believes in good faith that such action is reasonably necessary to protect the personal safety or property of Swim Buddies, its Members, or third parties (for example in the case of fraudulent behaviour of a Member). In addition, Swim Buddies may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payments Terms, our Policies or Standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Swim Buddies Account registration, Listing process or thereafter, (iv) you and/or your Listings or Services at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or Swim Buddies otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason, or (vii) Swim Buddies believes in good faith that such action is reasonably necessary to protect the personal safety or property of Swim Buddies, its Members, or third parties, or to prevent fraud or other illegal activity: refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content; cancel any bookings; limit your access to or use of the Swim Buddies Platform; temporarily or permanently revoke any special status associated with your Swim Buddies Account; or temporarily or in case of severe or repeated offences permanently suspend your Swim Buddies Account.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Swim Buddies and an opportunity to resolve the issue to Swim Buddies’ reasonable satisfaction. If we take any of the measures described above, you will not be entitled to any compensation for pending or confirmed bookings that were cancelled. This Section will survive any termination of these Terms and will continue to apply even if you stop using the Swim Buddies Platform or terminate your Swim Buddies Account. When this Agreement has been terminated, you are not entitled to a restoration of your Swim Buddies Account or any of your Member Content. If your access to or use of the Swim Buddies Platform has been limited or your Swim Buddies Account has been suspended or this Agreement has been terminated by us, you may not register a new Swim Buddies Account or access and use the Swim Buddies Platform through an Swim Buddies Account of another Member.
- Swim Buddies
2.1 Nature of Swim Buddies
Swim Buddies consists of a desktop Web application, mobile applications, and/or other related tools, support and services where Swimmers (“Clients” and Registrants such as parents, guardians, or others who may register swimmers/registrees) and providers of swimming-related services (“Instructor” “Coach”) can use to find, communicate with, and interact with each other to arrange Swim Classes to be carried out at an agreed upon Facility. Swim Buddies is not an owner or operator of properties, including, but not limited to, hotel, condo or apartment, privately owned or operated, or public facilities. Swim Buddies does not own, sell, or resell, provide, rent, re-rent, manage and/or control properties. There must be written agreement between a Swim Buddies User and Facility to use the Facility for a Class as well as an understanding to respect the Facilities hours of operation, facility rules, use of amenities, and access instructions.
Swim Buddies includes educational materials for Clients and Instructors, and other services. You may view limited information as an unregistered visitor to the site, application and services; however, if you wish to receive full access to Swim Buddies such as book Classes or set availability for Class Listings, you must first register and create a Swim Buddies account. If you choose to create an Instructor profile on the platform, you understand and agree that your relationship with Swim Buddies is limited to being a platform user as an independent operator, and not an employee, contractor, agent, joint venturer, or business partner of Swim Buddies. Swim Buddies does not take responsibility for the offline behaviours of users. Instructors are responsible for their own behaviour as independent operators when offering instruction. Swim Buddies disclaims any liability for any agreement entered into offline between the Instructors, Clients, or Facilities.
- Swim Buddies does not provide Swim Class Services.
The site is intended to be used to facilitate Clients and Instructors entering into short term work agreements (Class Bookings) whereby Instructors teach Clients private classes. Swim Buddies is a tool for Service Providers and Clients. Swim Buddies is not a Service Provider and, except for resources and support specifically described in the Swim Buddies Service, does not provide Swimming services. We make no representations or warranties about the quality of teaching, coaching, instructing, or other services provided by Service Providers (“Classes”), or about your interactions and dealings with users. Service Providers listed on Swim Buddies are not under the direction or control of Swim Buddies, and Service Providers determine, in their own discretion, how to provide Swimming related services. You understand and agree that Swim Buddies does not act as a contracting agent. All Instructors on the platform are independent operators. Swim Buddies has not hired them as independent contractors or subcontractors. If a Class Booking is confirmed with an Instructor, any agreement a Client enters into with such individual is between the Client and the Instructor and Swim Buddies is not a party to it. Though Swim Buddies may assist with Profile set-up, or de-activate or alter inappropriate or inaccurate postings, users have full control over their profiles and are responsible for the consequences of what they post. Each user of Swim Buddies is responsible for keeping current his or her own profiles with accurate, up to date information. Swim Buddies disclaims all liability related to the content published on user’s profiles. We may also provide general guidance on our Site to Service Providers about safety and resources and to Clients about selecting and engaging Service Providers, Swim Buddies does not employ, recommend or endorse Service Providers, Instructors, or Coaches, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Provider, Instructors, or Coaches, whether online or offline. We may conduct an initial review of Service Provider profiles on Service Providers conducted using a third party, but, except where explicitly specified in Swim Buddies (and then only to the extent specified), do not otherwise screen Service Providers, Instructors, or Coaches. You should exercise caution and use your independent judgment before engaging or otherwise interacting with users via Swim Buddies. Clients and Service Providers are solely responsible for making decisions that are in the best interests of themselves and/or their registree. Though Swim Buddies performs a limited review of Service Provider profiles, any such screening is limited, and Swim Buddies does not warrant that any such screen is accurate, complete, conclusive or up-to-date. Similarly, Swim Buddies does not endorse reviews of Service Providers by other Clients that may be available via Swim Buddies, and Swim Buddies makes no commitments that such reviews are accurate or legitimate.
- Google Maps.
Use of Swim Buddies requires use of Google Maps features and content, which are subject to the current (1) Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html(including the Acceptable Use Policy at https://cloud.google.com/maps-platform/terms/aup/); and (2) Google Privacy Policy at https://www.google.com/policies/privacy/ (collectively, the “Google Terms“). By using Swim Buddies, you acknowledge and agree to the Google Terms as they apply to you (e.g., as an “End User“). Any unauthorized use of the Google Maps features and content may result in your suspension or termination from Swim Buddies.
- Liability
Swim Buddies has no liability for any claims, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Clients, whether online or offline. You acknowledge and agree that, to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF SWIM RELATED SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
You agree that some Services or Facility Amenities may carry inherent risk, and by participating in those activities, you choose to assume those risks voluntarily. For example, some activities may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those activities. You assume full responsibility for the choices you make before, during and after your participation in these activities. If you are registering a minor as a Swimmer, you are solely responsible for the supervision of that minor throughout the duration of the Class, Facility Access, or Amenity Use and to the maximum extent permitted by law, you agree to release and hold harmless Swim Buddies from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to that minor during the Service or in any way related to the Facility. The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
3.2 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SWIM BUDDIES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE ROVER SERVICE, INCLUDING WITHOUT LIMITATION, PROPERTY DAMAGE, THEFT, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH SWIM BUDDIES, OR FOR ANY INTERACTIONS WITH OTHER USERS OF SWIM BUDDIES, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR CLIENT, YOU AGREE TO RELEASE SWIM BUDDIES FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL SWIM BUDDIES BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A CLIENT OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
- Transactions
4.1 Transactions are between Clients and Service Providers.
Swim Buddies may be used to find and book swim related services and to facilitate payment, but all transactions conducted via Swim Buddies are between Clients and Service Providers. You agree that Swim Buddies has no liability for damages associated with Swim Related Services (which may include bodily injury to, or death) or resulting from any other transactions between users of Swim Buddies.
- Bookings
Clients and Service Providers transact with each other on Swim Buddies when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Swim Related Services via the booking mechanism provided on the Swim Buddies site (a “Booking”). A Booking may be initiated by either a Service Provider or a Client by selecting the type(s) of Swim Related Services to be provided and then following the prompts that appear on-screen. If you are a Client and you initiate a Booking, you agree to pay for the Swim Class described in the Booking. If you are a Client and a Service Provider initiates a Booking, you agree to pay for the Swim Class described in the Booking when you click “Pay Now.” Once you complete a Booking, you agree to honor the price and other terms of that Booking, as acknowledged in the Booking confirmation.
- Force Majeure.
Swim Buddies shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, natural disasters, earthquakes, hurricanes, wildfires, floods, war, terrorism, riots, embargoes, fires, accidents, pandemics, disease, strikes, or other similar disasters. Swim Buddies may, in its reasonable discretion, issue refunds under terms in the Cancellation Policy.
Our collection and use of your personal information on Swim Buddies is described in our Privacy Statement. By accessing or using Swim Buddies, you acknowledge that you have read and understand the Privacy Statement.
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- Your Content
We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on Swim Buddies or otherwise in connection with using Swim Buddies and/or participating in promotional campaigns we conduct on the Site (collectively, “Your Content”). For example, Service Providers are invited to create a profile page with a photograph and other information and to transmit photos of their experience, while Clients may submit reviews of Service Providers.
In order to access certain features of the site and application, and to book Classes or create a profile, you must register to create an account. Swim Buddies may, in Swim Buddies’ sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Swim Buddies through the services textual, audio, and/or visual content and information, including commentary and feedback related to the services, initiation of support requests, and submission of entries for competitions and promotions. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant Swim Buddies an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting Swim Buddies, and to sublicense these rights to third parties.
- Release
If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Swim Buddies and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content.
- Your Representations and Warranties about Your Content
You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license and make the release with respect to Your Content; (2) that you have any necessary consents and releases from individuals who appear or whose children appear in Your Content; and (3) Your Content does not violate the law or these Terms.
- Reviews
Swim Buddies may provide the ability to leave public and/or private reviews of users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that Swim Buddies has no obligation to preserve or indefinitely store any reviews.
- Fees & Payment
- Service Fees.
We charge service fees for some aspects of Swim Buddies. If you are a Service Provider, except where otherwise specified via Swim Buddies, our service fee is calculated as a percentage of the fees a Client agrees to pay to you in a Booking and is collected from each Booking. Our service fees are described in section 7.3 below.
7.2 Cancellation Policy:
Swim Buddies Clients: For various reasons, clients may need to cancel their booked swim classes. If you find yourself in this situation, you can cancel your class through your Swim Buddies profile. Clients can cancel a class up to 48 hrs without charge. If booked classes are canceled within 48hrs of class start time, you will be charged for 100% of the class. Swim Buddies Coaches: Swim Buddies Coaches are encouraged to maintain their availability current. However, in some instances, a coach may still need to cancel a class. If a Coach needs to cancel class in advance with more than 48 hrs from class start time, the coach must connect with their client to inform them that their class needs to be canceled and rebooked by the client. Coaches that show a pattern of late arrivals or no shows may be removed from the platform.
Swim Buddies coaches or clients with a pattern of cancellations may be removed from the site.
7.3 Swim Buddies reserves the right to collect 10% of each swim class rate booked through Swim Buddies. Even if discount codes are used, Swim Buddies reserves the right to collect 10% of the original swim class rate.
- Indemnity
TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD SWIM BUDDIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of Swim Buddies; (2) breach of these Terms; (3) disputes with other users of Swim Buddies; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties caused by in your care; (6) Your Content; or (7) your use of any Background Check or Identify Verification information in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
- DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
This Dispute Resolution and Arbitration Agreement shall apply if you reside in Canada; or (ii) do not reside in the Canada, but bring any claim against Swim Buddies in Canada (to the extent not in conflict with Section 21). For those bringing any claim against Swim Buddies in Canada, a similar binding arbitration will be administered by the Canadian Arbitration Association.
Overview of Dispute Resolution Process. Swim Buddies is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom the above statement applies: (1) an informal negotiation directly with Swim Buddies customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section). Specifically, the process provides:
- Claims can be filed with AAA online ( www.adr.org );
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Swim Buddies each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Swim Buddies customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org ) provided to the other party, as specified in the AAA Rules.
Agreement to Arbitrate. You and Swim Buddies mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Swim Buddies Platform, the Facilities or Coaches Services, or the Collective Content (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Swim Buddies agree that the arbitrator will decide that issue.
Exceptions to Arbitration Agreement. You and Swim Buddies each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Jury Trial Waiver. You and Swim Buddies acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
No Class Actions or Representative Proceedings. You and Swim Buddies acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Swim Buddies both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Swim Buddies changes this Section (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Swim Buddies email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Swim Buddies in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
Survival. This Section will survive any termination of these Terms and will continue to apply even if you stop using the Swim Buddies Platform or terminate your Swim Buddies Account.
INDEMNIFICATION
You agree to release, defend (at Swim Buddies option), indemnify, and hold Swim Buddies and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Swim Buddies Platform or any Swim Buddies Services, (iii) your interaction with any Member, access of Facility, participation in a Class, or use of Facility Amenity, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, (iv) Swim Buddies Collection and Remittance of Taxes, or (v) your breach of any laws, regulations or third party rights.
DISCLAIMERS
If you choose to use the Swim Buddies Platform or Collective Content, you do so voluntarily and at your sole risk. The Swim Buddies Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate Swim Buddies, Services offered on the platform, laws, rules, or regulations that may be applicable to your Listings and/or Facilities or Instructor Services you are receiving and that you are not relying upon any statement of law or fact made by Swim Buddies relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
LIABILITY
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Swim Buddies Platform and Collective Content, your publishing of Listing or booking of any Lesson via the Swim Buddies Platform, your access to any Facility, use of any Amenity, or Instructor Service, or any other interaction you have with other Members whether in person or online remains with you. Neither Swim Buddies nor any other party involved in creating, producing, or delivering the Swim Buddies Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Swim Buddies Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the Swim Buddies Platform, or (iv) from your publishing or booking of a Listing, including the provision or use of a Listing’s Host Facility or Instructor Service, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Swim Buddies has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Instructors pursuant to these Terms, in no event will Swim Buddies aggregate liability arising out of or in connection with these Terms and your use of the Swim Buddies Platform including, but not limited to, from your publishing or booking of any Listings via the Swim Buddies Platform, or from the use of or inability to use the Swim Buddies Platform or Collective Content and in connection with any Lessons, Facility Access, Amenity Use, or interactions with any other Members, exceed the amounts you have paid or owe for bookings via the Swim Buddies Platform as a Client in the twelve (12) month period prior to the event giving rise to the liability, or if you are an Instructor, the amounts paid by Swim Buddies to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred Canadian dollars (CAD$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Swim Buddies and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
If you accept or agree to these terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.