TERMS OF USE

Last Updated: January 1, 2026

Please read this entire agreement carefully. It sets forth the legally binding terms and conditions for your use of the Service and the products and services available for sale through the Service. If you do not agree with anything stated in these Terms of Use or our Privacy Policy, please do not use this Service.

THIS AGREEMENT INCLUDES A BINDING ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER THAT AFFECT YOUR RIGHTS. THE ARBITRATION AGREEMENT REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS WITH LIMITED EXCEPTIONS SET FORTH BELOW. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

Privacy
Your use of the Service is subject to our Privacy Policy, which is expressly incorporated into these Terms by reference. Please review the Privacy Policy for more on how we collect and use information.

Overview
Welcome! The following Terms of Use (“Terms”) apply to all visitors or users (hereinafter, “you”) of our Swimandsweat.com website, blog site, microsites, and mobile websites (each, a “Site”), and your use of interactive features, widgets, plug-ins, content, downloads and/or other online services that we own and control and that post a link to these Terms (collectively with each Site and each App, the "Service"). The Service is provided by Swimandsweat.com (hereinafter,“Swimandsweat”, “we”, “our” or "us").

If you want to access or use the Service, then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree. In the event of a violation of these Terms, we reserve the right to seek all remedies available by law and in equity.

The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.

By accessing and/or using the Service, you agree to be bound by these Terms. In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service such as the Swimandsweat Privacy Policy, the Swimandsweat Return Policy, the Swimandsweat Ordering/Shipping Policy, or any other applicable terms that will apply (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

Your use of the Service constitutes your electronic signature and agreement to these Terms under the U.S. Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”).

Full Details of the Terms of Use
 
1. Service Content, Ownership, Limited License and Rights of Others

1.A. Content. The Service contains a variety of: (i) materials and other items relating to Swimandsweat, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Swimandsweat and Aquamore (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing collectively, “Content”). 

1.B. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by Swimandsweat, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Swimandsweat or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Swimandsweat owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service. 

1.C. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Swimandsweat grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: download (temporary storage only), display, view, use, play, and/or print one (1) copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, Swimandsweat‘s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

1.D. Rights of Others. When using the Service, you must respect the intellectual property and other rights of Swimandsweat and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 6 below.

1.E. Special Notice. We have a no-tolerance policy regarding the use of our Content, including our Trademarks (e.g., of Swimandsweat or Aquamore) in metatags and/or hidden text. Specifically, the use of our Trademarks in metatag keywords is trademark infringement, and the use of our Trademarks in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any web page on the Service is prohibited absent our express written permission. Associating or juxtaposing our Service or its Content (e.g., through framing or inline linking) with advertisements and/or other information not originating from our Service is expressly prohibited.

2. Service and Content Use Restrictions

2.A. Service Use Restrictions. You agree that you will not: (i) use the Service or any services we offer ourselves or through a third party if you are under the age of majority in your state of residence (a minor) unless your parent or legal guardian has agreed to these Terms on your behalf and granted you permission to use the Service or any services we offer; (ii) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (iii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iv) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Swimandsweat; (v) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (vi) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Swimandsweat, or other users of the Service; (vii) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User Content (defined below); (viii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (ix) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (x) otherwise violate these Terms or any Additional Terms. Swimandsweat reserves the right to block or deny access to the Service to anyone at any time for any reason.

2.B. Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Swimandsweat or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

2.C. Availability of Service and Content. Swimandsweat may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Swimandsweat’s sole discretion, and without advance notice or liability.

2.D. Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Swimandsweat and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.

3. Terms Applicable to Purchases

3.A. Purchases Generally. To purchase any products or services sold through the Service, or to utilize any services we offer ourselves or through a third party, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. If you are under the age of majority in your state of residence (a minor), you may also purchase any products or services sold through the Service if (i) your parent or legal guardian consents on your behalf and agrees to these Terms, and (ii) you have a valid credit card where an adult has listed you as an authorized user of their card. By submitting any information to us or to our third-party credit card processor or service provider, you agree that you authorize us and/or our processor or service provider to charge your card/account at our convenience. For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes, shipping and handling fees and surcharges) as of the time you submit the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price.

3.B. Methods of Payment, Credit Card Terms and Taxes. All payments must be made through any of the methods that are accepted at the time of payment by us or by our payment services provider. Your card issuer agreement governs your use of your designated card or payment account, and you must refer to that agreement and not these terms to determine your rights and liabilities as a card or account holder. If for any reason your default payment method is declined or no longer available, you authorize us to charge any other payment method that you have authorized for use on your account with us. You will remain responsible for any uncollected amounts. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT WE, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes, shipping and handling fees and surcharges) at the rates in effect when the charges were incurred. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents. Indirect taxes, value added taxes, fees, duty, import/export charges, or any similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes, fees or charges imposed on your purchase. We shall automatically charge and withhold the applicable taxes, fees or charges for orders to be delivered to addresses within any country, province, state, territory or local jurisdiction that we deem is required at the time of purchase.

To the extent applicable, you agree to receive emails from us in connection with payments without regard to time of day.

3.C. Return Policy and Orders/Shipping Policy. All purchase transactions made through the Service are subject to our return policy and orders/shipping policy in effect at the time of purchase. Our current Return Policy can be found here and is incorporated into these Terms by reference. Our current Orders/Shipping Policy can be found here and is incorporated into these Terms by reference. Some products or services may be made-to-order and may be subject to additional policies, conditions and restrictions, and may take longer to ship. Such made-to-order items are made and fulfilled to order, and will be noted on the product or services description. Products or services made-to-order may not be returned or exchanged unless damaged or incorrect on arrival due to our error. All products purchased from us are delivered to you by a third-party delivery company, pursuant to a shipping contract. You shall become the owner of the products and shall assume the risk of loss at the time of delivery by us of the products to the third-party delivery company. We are not responsible for losses or damages to products that are processed, opened or repackaged by a third-party. We shall not be in default if delivery is delayed or rendered impossible by forces of nature, war, civil commotion, governmental action, terrorism, fire, storm, flood, explosion, strikes, walkouts, pandemics, other industrial disturbances, utility, services or transportation interruptions or any other cause beyond our reasonable control.

3.D. Purchases Shipping to Global-e Countries Outside of the United States. When having an order shipped to countries where Global-e serves as the merchant of record (Global-e Countries), you agree that we and Global-e (Swimandsweat’s international seller for orders shipped to the Global-e Countries) may share, with each other, your information collected during the transaction to complete your order; and you acknowledge that the order information you submit on the international checkout page will be collected by Global-e to complete your order. For details, see Global-e's Privacy Policy and the sales Terms and Conditions, as well as the Service’s Privacy Policy.

Global-e Countries include certain non-U.S. countries. Please refer to Global-e’s Terms of Service at checkout to confirm that Global-e is the merchant of record for your transaction. Transaction may be subject to Global-e’s Terms of Sale and Privacy Policy.

3.E. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell or that the price or availability of an item has been confirmed. We reserve the right at any time after receipt of your order to accept or decline your order (or otherwise cancel your order) for any reason. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item or refuse to fulfill your order (in whole or in part). Your order will be deemed accepted by us upon our delivery of the products or services that you have ordered. We may require additional verifications or information before accepting any order. Unlike in-stock orders, certain products or services may be made-to-order and may be shipped to you directly from the third party on-demand vendor and subject to additional delay due to production methods. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your card or payment account in the amount charged for the cancelled portion or the quantity not provided (if your card/account has already been charged for the order); or (b) we will not charge your card/account for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with us has been effectuated until you receive a confirmation from us via email. As stated above, you will be responsible for, and your credit/debit card or other third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your order was received. We may refuse any order that is connected with a previous credit card dispute. We may refuse to accept any order if fraudulent activity is suspected and we may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.

3.F. No Responsibility to Sell Mispriced Products. We do our best to describe every item, product or service offered on the Service as accurately as possible. However, we are human, and therefore we do not warrant that specifications or prices on the Service are complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, we shall have the right to refuse or cancel any orders in our sole discretion. If we charged your credit/debit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. If we accept and process your order where a pricing or specification error is obvious and unmistakable and could reasonably have been recognized by you as a mispricing or misdescription, we may cancel the sale, refund you any sums you have paid and require the return of any goods provided to you under the order. If a product you purchased from us is not as described on the Service, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging, subject to the terms of the Return Policy.

3.G. Modifications to Prices or Billing Terms. Purchases of products and services on the Service are subject to availability. All descriptions, images, references, features, content, information, specifications, products and prices described or depicted in connection with the Service are subject to change at any time without notice. We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services, including for any items sold by third parties (if any). We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. Descriptive, typographic and photographic errors are subject to correction, and we shall have no liability of any kind for such errors. We reserve the right to modify or cancel orders for any reason, including for typographical, pricing and other errors at any time. We strive to display as accurately as possible the colors of the products shown on the Service; however, we cannot and do not guarantee that your monitor’s display of any color will be accurate. PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME.

3.H. Offers and Discounts. For most promotional offers, such as coupons, vouchers, and discounts, restrictions apply. See offer for full terms and conditions applicable thereto which shall be provided as part of each offer. Please read the details of each offer, as coupons and promotional code restrictions vary. We reserve the right to modify, suspend, impose conditions on or cancel offers at any time without notice. If you return any of the items purchased with a discount offer, the discount or value may be subtracted from the return credit. We have no obligation for payment of any tax in conjunction with the distribution or use of any offer. You are required to pay any applicable sales tax related to the use of the offer.

3.I. Products for Personal Use Only. By placing an order for products or services through the Service, you represent and warrant that any products or services purchased are for your own personal use or gifting, and not for purposes of resale. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In such an instance, if practical, we will notify you of our reasons for cancelling or refusing the order.

4. Accounts. In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for a user account through our registration process that we make available through the Service. The Service’s practices governing any resulting collection and use of your personal information are disclosed in our Privacy Policy. If you register for any feature that requires a password and/or username, then you will choose your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or email address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or email address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.

5. Your User Submissions and Community Usage Rules

5.A. User Content. We may at times invite you to respond to an invitation to post digital content in the manner specified (“User Content"), for example, by using the specified tags, (e.g., the hashtag and the brand tag) or by launching Content from the Service (the "Invitation"). By “User Content," we mean all content, including, without limitation, product reviews, testimonials, communications, messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein that comprise the content that you post in response to such an Invitation or on the Service. By submitting your User Content or by applying any required hashtags or other tags, you agree to these Terms. Specifically, you:

1. Represent that you are a legal resident of the US, the District of Columbia, Puerto Rico, or other United States territory or possession, and are at least eighteen (18) years of age or the age of majority in your jurisdiction of residence.
2. Represent that you own or have secured all rights, title, and interest in the User Content
3. Represent that you have obtained express permission from everyone who created, or is appearing in, your User Content.
4. Acknowledge that you will not be compensated in any way for our use of your User Content.
5. Represent that you understand that we may retouch, edit or otherwise alter User Content (such as photos) without your ability to inspect or pre-approve.

If you do not fully consent to and authorize use of User Content as outlined here, do not respond to the Invitation.

If you want to have your User Content taken off the Service at any time, please contact us. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.

1. Non-Confidentiality of Your User Content. Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (i) your User Content will be treated as non-confidential – regardless whether you mark it as “confidential,” “proprietary,” or the like – and will not be returned; and (ii) Swimandsweat does not assume any obligation of any kind to you or any third party with respect to your User Content. Upon Swimandsweat’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk. In your communications with Swimandsweat, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User Content and licensed to us as set forth below. In addition, Swimandsweat retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Swimandsweat’s receipt of your Unsolicited Ideas and Materials is not an admission by Swimandsweat of their novelty, priority, or originality, and it does not impair Swimandsweat’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
2. License to Swimandsweat of Your User Content. Except as otherwise described in any applicable Additional Terms, you grant to Swimandsweat the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (i) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine same with other materials, and (ii) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license to your User Content that you grant to Swimandsweat, you also hereby grant to Swimandsweat, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(iii).
3. Exclusive Right to Manage Our Service. Swimandsweat may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and Swimandsweat  may, in its sole discretion, reject, delete, move, reformat, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5(B). Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere.
4. Enforcement. Swimandsweat has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Swimandsweat’s cost and expense, to which you hereby consent and irrevocably appoint Swimandsweat as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

5.B. Community Usage Rules. As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of visitors of the Service’s online forums, blogs, and other user content areas (collectively, “Communities”).

1. Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
   • Your User Content. All of your User Content either must be original content created by you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User Content or has any rights to your User Content, or if anyone appears or is referred to in the User Content, then you must also have their permission to submit such User Content to Swimandsweat (for example, if someone has taken a picture of you and your friend, and you submit that photo to Swimandsweat as your User Content, then you must obtain your friend’s and the photographer’s permission to do so.).
   • No Images of Individuals Without Their Permission. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
   • No Pictures, Videos, or Images of Children. Do not submit photos, videos, images, or other information pertaining to children under the age of 18 to the Service.
   • Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User Content might offend someone or be embarrassing to someone, then chances are it probably will and it does not belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, hate speech, gossip, and similar actions are prohibited. Your User Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
   • Do Not Use for Commercial or Political Purposes. Your User Content must not advertise or promote a product or service (other than products or services of Swimandsweat) or other commercial activity, or a politician, public servant, or law. You must not create, edit or post User Content about your own products or services or products or services offered by friends, relatives, employers, business associates, or competitors.
   • Do Not Use for Inappropriate Purposes. Your User Content must not promote any infringing, illegal, or other similarly inappropriate activity. We do not allow content that facilitates the purchase of illegal or dangerous goods and/or services, prostitution, and escort services. You may not use our Communities or the Services to hold lotteries, contests, sweepstakes, or giveaways. Your User Content must not sensationalize or capitalize on tragic events for commercial purposes.
   • Do Not Promote Violent Conduct. Your User Content must not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or medical condition. Your User Content must not promote or encourage suicide or self-harm. We will remove any accounts maintained by individual perpetrators of terrorist, violent extremist, or mass violent attacks, or User Content promoting dangerous organizations or individuals, and may also remove User Content disseminating manifestos or other content produced by perpetrators.
   • Be Honest and Do Not Misrepresent Yourself or Your User Content. Do not impersonate any other person, user, or company, and do not submit User Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
   • Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions about Swimandsweat products, services and campaigns. However, please remember that the Communities are public or semi-public and User Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
   • External Links. Your User Content should not contain links to external sites. Do not post links to phishing or malware sites. We also do not allow URLs with referrer tags or affiliate codes, unless expressly permitted by Swimandsweat.
   • Don’t Share Other Peoples’ Personal Information. Your User Content should not reveal another person’s address, phone number, email address, social security number, payment card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Swimandsweat.
   • Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User Content must not contain viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
   • Don’t Share any False or Misleading Content. Do not share content in a way that you know is, or think may be, misleading or inaccurate, including misinformation or disinformation. Do not share content to interfere with or improperly influence an election or other civic process. We may prevent you from posting content from sites that are known to produce or contain misinformation. Do not share content that directly contradicts guidance from leading global health organizations and public health authorities; including false information about the safety or efficacy of COVID-19 vaccines. Do not share false content or information, including news stories, as though they are true or likely true. Do not post “deepfake” images or videos of others or otherwise post content that has been manipulated to deceive. Do not use the Communities to facilitate romance scams, promote pyramid schemes, or otherwise defraud members.

If you submit User Content that Swimandsweat reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. Such actions may include, for example, the removal of your User Content, limiting your ability to use and post to our Services and Communities, or the termination of your account. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Service.

2. Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user or for any actions taken by one user against another user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.

5.C. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us here. We will take any action we deem appropriate, but we are not obligated to take any action that is not required by law. For alleged infringements of intellectual property rights, see Section 6 and 7, below.

6. Notice of Copyright Infringement under the “Digital Millennium Copyright Act” (DMCA)
 
6.A. DMCA Notice. Swimandsweat will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

1. a legend or subject line that says: “DMCA Copyright Infringement Notice”;
2. a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
3. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
4. your full name, address, telephone number and email address;<
5. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
7. your electronic or physical signature.

It is often difficult to determine if your copyright has been infringed. Swimandsweat may elect to not to respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Swimandsweat may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.

Without limiting Swimandsweat’s other rights, Swimandsweat may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Swimandsweat.

6.B. Counter Notification. If access on the Service to a work that you submitted to Swimandsweat is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

1. a legend or subject line that says: “DMCA Counter-Notification”;
2. a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
4. your full name, address, telephone number, email address, and the username of your account
5. a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S., to the jurisdiction of the United States District Court for the District of New Jersey – Trenton Vicinage, and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
6. your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

7. Procedure For Alleging Infringement of Other Intellectual Property. If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:

1. legend or subject line that says: “Intellectual Property Infringement Notice”;
2. a description of the intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
4. your full name, address, telephone number and email address;
5. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
6. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
7. your electronic or physical signature.

We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Swimandsweat with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

8. Questions. If you have a question regarding using the Service, you may contact us. You acknowledge that the provision of customer support is at Swimandsweat’s sole discretion and that we have no obligation to provide you with customer support of any kind.

9. Patents. One or more patents may apply to the Service.

10. Linked-To Websites; Advertisements; Dealings with Third Parties

10.A. Linked Services; Advertisements. The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with Swimandsweat. Swimandsweat may have no control over the content, operations, policies, terms, or other elements of Linked Services, and Swimandsweat does not assume any obligation to review any Linked Services. Swimandsweat does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Swimandsweat is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. Finally, Swimandsweat will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. Swimandsweat disclaims all liability in connection therewith.

10.B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Swimandsweat disclaims all liability in connection therewith.

11. Wireless Features

11.A. Mobile Website. We make our Sites available in a mobile-friendly format as well (our "Mobile Site"). All mobile phones that have Internet access can make use of the Mobile Site. You should be aware that some of the special pricing and promotions offered on the full html website may not be available on the Mobile Site and that some of the special pricing and promotions offered on the Mobile Site may not be available on the full html website.

11.B. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your prepaid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.

11.C. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.

11.D. Telephone/Messaging Terms and Conditions. Swimandsweat and other affiliated companies offer mobile messaging and telephone communication programs (programs that facilitate communications such as short messaging service, multimedia messaging service, artificial voice messages, prerecorded voice messages, and/or autodialed communications (collectively, “Program(s)”), through which it sends periodic automated communications with news and offers. Such communications will be made in accordance with our Telephone/Messaging Terms and Conditions. The Telephone/Messaging Terms and Conditions apply to your participation in any Program(s), as well as telephonic communications generally. You acknowledge that telephone communications to or from us may be monitored and recorded and you consent to such monitoring and recording. Review the Telephone/Messaging Terms and Conditions here they are considered Additional Terms and expressly incorporated into these Terms by this reference.

12. Dispute Resolution

PLEASE READ THIS ENTIRE SECTION (INCLUDING THE ARBITRATION AGREEMENT, CLASS ACTION WAIVER AND JURY TRIAL WAIVER, AND GOVERNING LAW AND VENUE PROVISIONS) CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS IN THE EVENT OF A DISPUTE WITH US. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, AND DISCOVERY IS MORE LIMITED. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION IN ARBITRATION, OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

IN THE UNLIKELY EVENT THAT WE HAVE A DISPUTE THAT CANNOT BE RESOLVED THROUGH CUSTOMER SERVICE, YOU AND SWIMANDSWEAT AGREE THAT THESE PROVISIONS SHALL APPLY.

12.A. Arbitration Agreement

1. Binding Arbitration. This provision is intended to be interpreted broadly. Any dispute or claim arising out of or relating to these Terms, your use of the Service, or your relationship with Swimandsweat or any past, present, or future subsidiary, parent or affiliate companies, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, (“Dispute”) will be resolved through binding individual arbitration, except that either of us may take a Dispute to small claims court if it falls within the jurisdictional limits of that court and so long as it isn’t removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis). Whether a Dispute falls within the jurisdictional limits of small claims court is for that court to decide in the first instance. Dispute shall include, but not be limited to: (i) any dispute or claim that arose before the existence of these or any prior Terms (including, but not limited to, claims relating to advertising); (ii) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (iii) any dispute or claim that may arise after termination of these Terms. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (i) issues that are reserved for a court in these Terms; (ii) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, or any of the provisions of this Dispute Resolution section; and (iii) issues that relate to the arbitrability of any Dispute. These Terms and this arbitration agreement do not prevent you from bringing a Dispute to the attention of any government agency. You and Swimandsweat agree that these Terms evidence a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law (not state arbitration law).
2. Mandatory Informal Dispute Resolution Process. You and Swimandsweat agree to work together in an effort to informally resolve any Dispute between us. The party initiating the Dispute must send the other a written notice of the Dispute that includes all of this information: (i) information sufficient to identify any transaction and account at issue; (ii) contact information (including name, address, telephone number, and email address); and (iii) a detailed description of the nature and basis of the Dispute and the relief sought, including a calculation for it. The notice must be personally signed by the party initiating the Dispute (and their counsel, if represented). If you have the Dispute with us, you must send this notice to us at: support@swimandsweat.com. If we have a Dispute with you, we will send this notice to the most recent contact information we have for you. For a period of 60 days from receipt of a completed notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the notice may request a telephone settlement conference to aid in the resolution of the Dispute. If such a conference is requested, you and a Swimandsweat representative will personally attend (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period. Completion of this Mandatory Informal Dispute Resolution Process (“Process”) is a condition precedent to initiating a claim in arbitration. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this Process in arbitration. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process. You or we may commence arbitration if the Dispute is not resolved through this Process.
3. Arbitration Procedures. The arbitration of any Dispute shall be administered by and conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules, including supplementary rules (as applicable) (collectively the “AAA Rules”), as modified by this arbitration agreement. The AAA Rules are available online at www.adr.org. You and we understand and agree that the AAA’s administrative determination that this arbitration agreement comports with the AAA Consumer Due Process Protocol is final and that neither a court nor an arbitrator has the authority to revisit it. If the AAA is unavailable or unwilling to administer the arbitration consistent with this arbitration agreement, the arbitration shall be administered by National Arbitration and Mediation (“NAM”) under its then-current consumer rules, including supplementary rules (as applicable) (collectively, the “NAM Rules”), as modified by this arbitration agreement. The NAM Rules are available online at https://www.namadr.com/resources/rules-fees-forms. If NAM is unavailable or unwilling to administer the arbitration consistent with this arbitration agreement, the parties shall agree on an administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an administrator that will do so. If you have any questions about how to access information about the AAA or NAM, please contact them (their contact information is available on their respective websites) or Swimandsweat at support@swimandsweat.com.

    

   An arbitration demand must be accompanied by a certification of compliance with the Process and be personally signed by the party initiating arbitration (and counsel, if represented). By submitting an arbitration demand, the party and counsel represent that, as in federal court, they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking $12,500 or more or injunctive relief shall have an in-person or video hearing unless the parties agree otherwise. You and we reserve the right to request a hearing in any matter from the arbitrator. You and a Swimandsweat representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will be held in the county or parish in which you reside or at another mutually agreed location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the fullest extent allowable by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. An arbitrator must follow and enforce these Terms as a court would. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated. The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party.

    

4. Costs of Arbitration. Payment of arbitration fees will be governed by the AAA Rules and fee schedule (or the NAM Rules and fee schedule, if NAM is the administrator). You and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or we may elect to engage with the administrator regarding arbitration fees, and you and we agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
5. Additional Procedures for Mass Arbitration. You and we agree that these Additional Procedures for Mass Arbitration (in addition to the other provisions of this arbitration agreement) shall apply if you choose to participate in a Mass Arbitration (defined below). If 25 or more similar Disputes (including yours) are asserted against Swimandsweat by the same or coordinated counsel or are otherwise coordinated (“Mass Arbitration”), you understand and agree that the resolution of your Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these additional procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated in either stage (as set forth below), and to conserve the parties’ and the administrator’s resources. If your claim is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to the AAA (or NAM) until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

    

   STAGE ONE: If at least 100 Disputes are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for Swimandsweat shall each select 50 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process. The number of Disputes to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage One). Each of the 100 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this initial set of proceedings, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel (or another mediator agreed to by counsel for the parties) in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and Swimandsweat shall pay the mediator’s fee.
   

   STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Swimandsweat shall each select 100 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 200 Disputes, all shall proceed individually in Stage Two). No more than five cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this second set of staged proceedings, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel (or another mediator agreed to by counsel for the parties) in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and Swimandsweat shall pay the mediator’s fee.
   

   Upon the completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees.
   

   The Additional Procedures for Mass Arbitration provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Arbitration apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.

6. Future Changes to Arbitration Agreement. If we make any future changes to this arbitration agreement (other than a change to our contact information), you may reject any such change by sending your personally signed, written notice to the following address within 30 days of the change: support@swimandsweat.com. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Swimandsweat in accordance with this version of the arbitration agreement.

12.B. Class Action Waiver and Jury Trial Waiver

1. YOU AND SWIMANDSWEAT EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, BOTH PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.
2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND SWIMANDSWEAT WAIVE THE RIGHT TO A JURY TRIAL.

12.C. Governing Law and Jurisdiction. These Terms and your use of the Service are governed by the laws of the state of New Jersey without regard to New Jersey’s conflict of laws rules. If the arbitration agreement is ever deemed unenforceable or void, or a dispute between the parties is not subject to arbitration or for any challenge to the arbitration agreement or other provisions of these Terms, you and we irrevocably consent to the exclusive jurisdiction of the federal and state courts in Hunterdon County, New Jersey, and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to: (i) inconvenient forum or (ii) any other basis or any right to seek to transfer or change venue of any such action to another court.

13. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Swimandsweat, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agencies, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, the “Swimandsweat Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

1. the Service (including the Content and the User Content);
2. the functions, features, or any other elements on, or made accessible through, the Service;
3. any products, services or instructions offered or referenced at or linked through the Service;
4. security associated with the transmission of your User Content transmitted to Swimandsweat via the Service;
5. whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
6. whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, reliable or safe;
7. whether any defects to, or errors on, the Service will be repaired or corrected;
8. whether your access to the Service will be uninterrupted, timely, secure or error-free;
9. whether the Service will be available at any particular time or location; and
10. whether your use of the Service is lawful in any particular jurisdiction.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A SWIMANDSWEAT PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SWIMANDSWEAT PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

14. LIMITATIONS OF OUR LIABILITY.TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY SWIMANDSWEAT PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:

1. the Service (including the Content and the User Content;
2. your use of or inability to use the Service, or the performance of the Service;
3. any action taken in connection with an investigation by Swimandsweat Parties or law enforcement authorities regarding your access to or use of the Service;
4. any action taken in connection with copyright or other intellectual property owners or other rights owners;
5. any injury you sustain directly or indirectly as a result of your use of the Service or any products or services purchased through the Service;
6. any errors or omissions in the Service’s technical operation; or
7. any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Swimandsweat Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, Acts of God, telecommunications failure, or destruction of the Service).

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you. EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SWIMANDSWEAT PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SWIMANDSWEAT TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE WAIVED AND TIME BARRED. Commencing means, as applicable: (i) by delivery of written notice as set forth above in Section 12(A); (ii) filing for arbitration as set forth in Section 12(A); or (iii) filing an action in state, Federal or provincial court.

15. Waiver of Injunctive or Other Equitable Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SWIMANDSWEAT (INCLUDING YOUR LICENSED USER CONTENT) OR A LICENSOR OF SWIMANDSWEAT.

16. Updates to Terms. These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU ACCESS, SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR ACCESS OR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING-FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW ACCESS, USE AND TRANSACTIONS. You agree that: (i) we may give you notices of new, revised or changed Terms and other important matters by prominently posting notice on the webpage hosting these Terms, or in another reasonable manner that we may elect; and/or (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information. Therefore, you should review the posted terms of use and any applicable Additional Terms each time you access or use the Service (at least prior to each transaction or submission). The Additional Terms will be effective as to new access, use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously accessed or used the Service will continue to apply to such prior access or use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing access or use of the Service and related services.

17. General Provisions

17.A. Swimandsweat’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grant Swimandsweat a right of consent or approval, or permits Swimandsweat to exercise a right in its “sole discretion,” Swimandsweat may exercise that right in its sole and absolute discretion. No opt-in consent or approval may be deemed to have been granted by Swimandsweat without being in writing and signed by an officer of Swimandsweat.

17.B. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Swimandsweat Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Swimandsweat Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Swimandsweat Parties’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Swimandsweat Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Swimandsweat Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Swimandsweat Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Swimandsweat Party.

17.C. Operation of Service; Availability of Products and Services; International Issues. The Service is operated in the United States, and is primarily intended for users located in the U.S. Swimandsweat makes no representation that the Service is appropriate or available for use beyond the U.S. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.

17.D. Severability; Interpretation. Except as otherwise provided herein, if any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

17.E. Communications. As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

17.F. Investigations; Cooperation with Law Enforcement; Termination; Survival. Swimandsweat reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Swimandsweat in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Swimandsweat under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Swimandsweat, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Swimandsweat in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

17.G. Assignment. Swimandsweat may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Swimandsweat.

17.H. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Swimandsweat in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict Swimandsweat’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.

17.I. California Consumer Rights. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.

17.J. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.