NOTICE TO CALIFORNIA RESIDENTS. To comply with California law, SwimOutlet provides the following notice to users who are California residents:
- Our legal name is Spiraledge, Inc., d/b/a/ SwimOutlet.com.
- Our address is 1919 S. Bascom Ave., Suite 300, Campbell, CA 95008.
- Our telephone number is 1-800-691-4065.
- Our return policy and related information is available at: https://support.swimoutlet.com/hc/en-us/articles/202812240-What-is-your-return-policy-.
- For complaints, California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at firstname.lastname@example.org.
- "Suppliers" means third-party manufacturers or brand owners who make their products available for purchase through SwimOutlet.
- "Supplier Materials" means Suppliers' trademarks, logos, product/model photos and images, product information, advertisements, links, and other materials that are provided by Suppliers for use or display on this Site.
- "User Content" means anything originated by users, such as user-generated photos, images, videos, messages, ideas, suggestions, comments, reviews, testimonials, etc., but excluding the following: (i) users' account information and purchase information (including their billing and payment information); and (ii) anything that is copied or derived by users from SwimOutlet-owned material. To the extent User Content contains users' names, voices, likenesses, photographs, biographical information, etc., all such identifying elements will be deemed part of User Content.
2. GENERAL PROVISIONS.
- 2.1 Eligibility. By using this Site, you represent and warrant that you have reached the age of majority in your state of resident and have full legal capacity to enter into a legally binding contract with SwimOutlet.
- 2.2 Compliance with Applicable Laws. Use of this Site is subject to all applicable laws and regulations. You acknowledge and agree that it is solely and entirely your responsibility to comply with all laws and regulations applicable to your use of this Site. Use of this Site is prohibited if such use would be deemed illegal under applicable laws or regulations in the jurisdiction in which you reside.
- 2.3 International Use. This Site is hosted and operated within and from the U.S. SwimOutlet does not represent or warrant that this Site will be appropriate or available for use in locations outside the U.S. If you access this Site from a location outside the U.S., you acknowledge and agree that you do so of your own volition and at your own risk and that you are solely and entirely responsible for complying with all applicable local laws and regulations.
The SwimOutlet name and logo are trademarks of SwimOutlet. Suppliers' names and logos appearing on this Site are trademarks of their respective owners.
- 2.7 Electronic Communications. When you use this Site, you are communicating with us electronically, and you consent to receiving communications from us electronically, including emails, push messages, in-app messages, and messages posted to your account on this Site. You acknowledge and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that the same be in writing.
- 2.8 Mobile Service Charges. By using this Site on a mobile device (including downloading any Site Content onto a mobile device), you acknowledge and agree that standard carrier charges may apply and that depending on your wireless service plan, your wireless carrier may impose data and/or other charges when you use this Site, and that any and all such charges will solely be your responsibility.
- 2.9 Affiliate Program. SwimOutlet offers an affiliate program that enables swim teams to create their own online stores on this Site and earn commissions from referred sales. Participation in such affiliate program is subject to and governed by SwimOutlet's Affiliate Program Terms and Conditions at https://www.swimoutlet.com/affiliate-terms-of-use/.
3. ACCOUNT REGISTRATION. By registering an account on this Site, you represent and warrant that all account information you submit is your own information and is truthful and accurate. You acknowledge and agree that we may immediately suspend or terminate your account and your access to this Site if we have any reason to believe that you have misrepresented or provided false account information to us. It is your responsibility to notify us of any change in your account information, including your contact information. As the account holder, you are responsible for safeguarding your account login information, and you should notify us immediately in the event your account login has been stolen, lost, or used by another without your permission. If you allow others to use your account, you are responsible for all their activities on your account.
4. MAKING PURCHASES.
- 4.1 Representations and Warranties. A valid credit card that is accepted by us (Visa, MasterCard, American Express, etc.) or a valid third-party payment account that is accepted by us (PayPal, Apple Pay, Google Pay, etc.), is required for making a purchase on this Site. By making a purchase on this Site, you represent and warrant that: (i) all billing and payment information you provide to SwimOutlet is truthful and accurate; (ii) you are the holder (or an authorized user) of the credit card or PayPal account you use to pay for your order, and the account is active and has sufficient funds to cover the full transaction amount of your order (i.e., product price plus shipping/handling charges and applicable taxes); and (iii) you are purchasing products from SwimOutlet for your own personal, family or household use or, if you are purchasing for a swim team, for your team's own use only, and not for commercial resale.
- 4.2 Reservation of Rights. All orders submitted on this Site are subject to acceptance in SwimOutlet's sole discretion. SwimOutlet reserves the right to refuse or cancel any order for any reason, including, without limitation: product unavailability; errors in product or pricing information; errors in billing or shipping information; and fraud prevention. In order to protect against fraud and unauthorized purchases, SwimOutlet also reserves the right, prior to processing an order, to verify the account holder of the credit card or PayPal account used to place the order. SwimOutlet will reject or cancel an order if the credit card or PayPal account used to place the order is declined for any reason.
- 4.3 Product Information. Product information and images displayed on this Site are for general informational purposes only, may contain errors, and are subject to change. SwimOutlet makes no warranty (express or implied) that product information and images on this Site will be accurate in all respects. Also, depending on the screen quality and settings of your computer or mobile device, product color or finish you see on your computer or mobile device may differ from actual product color or finish, and SwimOutlet makes no warranty (express or implied) that product color or finish you see on your computer or mobile device will accurately reflect actual product color or finish. If you have questions about a product you see on this Site, please contact our Customer Service by using the "Live Chat" feature provided on this Site, or by phone at 1-800-691-4065, or via email at email@example.com, 24/7 Monday-Sunday, (excluding public holidays).
- 4.4 Product Availability. SwimOutlet does not guarantee the availability of any product displayed on this Site. SwimOutlet reserves the right, without notice or liability to you, to change, discontinue or stop the offering of any product.
- 4.5 Prices. Prices advertised are subject to change without notice. The price charged for a product will be the price in effect at the time the order is placed and will be set out on the purchase receipt. Product prices do not include shipping/handling charges or applicable taxes. All prices and other charges are in U.S. Dollars, unless expressly otherwise stated. While SwimOutlet makes reasonable efforts to display price information as accurately as possible, errors may occur. If SwimOutlet discovers an error in the price of a product you have ordered, SwimOutlet will notify you of the error as soon as possible and will give you the option of reconfirming your order at the correct price or cancelling your order. If SwimOutlet is unable to get in contact with you within 24 hours, SwimOutlet will treat your order as cancelled. If your order is canceled by SwimOutlet due to a pricing error and you have already been charged for the product, you will receive a full refund. In no event will SwimOutlet be obligated to sell you a product at the incorrect price.
- 4.6 Shipping. Shipping/handling charges depend on the shipping method you select at checkout, and will be added to your order total, and will be set out as a separate item in your shopping cart and on your purchase receipt. For U.S. domestic orders, shipping information is available at: https://support.swimoutlet.com/hc/en-us/articles/201151960-us-shipping-options-and-information. For international orders, shipping information is available at: https://support.swimoutlet.com/hc/en-us/articles/202964500-international-shipping.
- 4.7 Taxes. Depending on the shipping destination of your order, sales tax, value-added tax (VAT), customs duty, and/or other government-assessed charges (collectively "Taxes") may apply to your order. By making a purchase on this Site, you agree to be solely responsible for paying all Taxes applicable to your purchase. Where required by law, applicable Taxes will be added to your order total at checkout and will be set out as a separate item in your shopping cart and on your purchase receipt.
- 4.8 Ordering. To place an order on this Site, simply add the desired product item(s) to your shopping cart and proceed to check out to complete and submit your order. You can complete and submit your order either as a guest or by creating an account on this Site. By placing an order, you expressly authorize SwimOutlet to charge (through its payment processing vendor) the full transaction amount of your order (i.e., product price plus shipping/handling charges and applicable taxes) to the credit card or PayPal account specified by you. Upon successful processing of your order, SwimOutlet will send you via email a printable receipt detailing your purchase. Please save your purchase receipt and you will need it if you wish to check your order status or cancel your order.
- 4.9 Order Cancellation. Until such time an order is shipped (i.e., before it is picked up by the shipping carrier from SwimOutlet's warehouse), you may cancel or modify it by contacting our Customer Service by phone at 1-800-691-4065 or via email at firstname.lastname@example.org 24/7 Monday- Sunday (excluding public holidays). Once an order has been shipped, it CANNOT be cancelled or modified. In such case, if you no longer want the product, you should wait for the package to arrive and then return the package in accordance with SwimOutlet's return policy (see Section 4.10 below).
- 4.10 Returns. SwimOutlet has a 30-day return policy on eligible items, provided that they are returned in new and unused condition and with original tags and packaging. Not all items purchased on this Site are eligible for return – for example, the following items are NON-RETURNABLE:
- items marked as "FINAL SALE"
- items that are custom-made
- Grab Bag suites
- Gift cards
Other conditions and restrictions apply. For details, please view SwimOutlet's return policy and related information at https://www.swimoutlet.com/helpcenter/sections/200548640-Returns.
NOTE: Some items offered on this Site are shipped directly from the manufacturers ("direct from manufacturer"), and whether such items are returnable depends on the policy of the manufacturer. For more information on "direct from manufacturer" items, please go to https://www.swimoutlet.com/helpcenter/articles/202825410-Direct-from-Manufacturer.
- 4.11 Gift Cards. SwimOutlet gift cards are available for purchase on this Site either as electronic cards (i.e., e-gift cards) or as physical cards. Unless expressly otherwise stated by SwimOutlet, the following terms and conditions apply to SwimOutlet gift cards:
- All gift card sales are FINAL. Purchased gift cards are NON-RETURNABLE and NON-REFUNDABLE.
- Gift cards are only redeemable for purchases from this Site, and are not redeemable for cash or credit (except that a gift card with a cash value of less than ten dollars ($10) is redeemable in cash for its cash value).
- Gift cards are not reloadable.
- A gift card cannot be used to purchase another gift card.
- Promo codes and discounts do not apply to the purchase of gift cards.
- Gift cards do not expire as long as there is value remaining on the cards.
- Please safeguard your gift card and do not share card number or PIN with others. SwimOutlet cannot replace or replenish gift cards that are lost, stolen, or used without authorization.
NOTE: SwimOutlet will honor any state laws that may differ from the gift card terms set forth above in this Section 4.11. Check your own state laws for applicability.
- 4.12 Discounts/Promo Codes. SwimOutlet may from time to time offer discounts/promo codes to eligible customers for use toward purchases on this Site. Unless expressly otherwise stated by SwimOutlet, use of such discounts or promo codes is subject to the following terms and conditions:
- Discounts/promo codes are valid for a limited time only. SwimOutlet may modify or discontinue them at any time.
- Discounts/promo codes apply only to qualifying items (as specified by SwimOutlet) that are in stock while supplies last. Discounts/promo codes cannot be used for pre-orders or backorders. Other restrictions may apply.
- SwimOutlet may limit the quantity of products that can be purchased with discounts/promo codes.
- Discounts/promo codes can be used only once.
- Discounts/promo codes cannot be combined with other offers, unless otherwise specified by SwimOutlet.
- Discounts/promo codes can only be used toward purchases made on this Site, and are not redeemable for cash or credit.
- Discounts/promo codes cannot be applied toward previous purchases.
- Discounts/promo codes do not apply to shipping or handling charges or applicable taxes.
- Where a discount/promo code has a minimum purchase requirement, shipping and handling charges and applicable taxes do not count toward the minimum purchase amount.
- The entire value of a discount/promo code must be used in a single transaction. No refund or credit will be given for any leftover value.
- If you return an item purchased using a discount/promotion code, SwimOutlet will subtract the value of the discount/promotion code from your return credit or refund.
- 5.2 Prohibited Uses. Any unauthorized or unlawful use of this Site or any Site Content is strictly prohibited. Specifically, you shall not:
- use this Site or any Site Content for any unlawful purpose, including, without limitation: operating any scam or fraudulent scheme (such as a pyramid or ponzi scheme); impersonating another, or making unauthorized use of another's information; disseminating junk email, spam, or other unsolicited and unwanted messages or communications; or collecting personal information from or about others without their knowledge or consent, including through "phishing" or under any other false pretense;
- use this Site to submit, upload, store, display, transmit, publish or distribute any User Content that: (i) is unlawful; threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar; pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous; or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii) promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication, underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains, promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid schemes and ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or material that is designed to damage, interfere with, intercept, lock out, or expropriate any software, hardware, information or data; or (viii) violates or misappropriates another's copyright, trademark, trade secret, patent, right of publicity, right of privacy, contractual right, or other property or proprietary right of any kind (including, without limitation: using another's name, likeness, photo, or other identity without consent);
- copy, reproduce, distribute, sell, lend, rent, lease, or modify, translate, or otherwise make derivative works from, this Site or any Site Content;
- use this Site for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of developing any product or service to compete against SwimOutlet;
- interfere in any way with the operation of this Site, or any server, network or system associated therewith, including, without limitation: hacking, mail-bombing, flooding, overloading, or making "denial of service" attacks; probing, scanning or testing the vulnerability of this Site, or any server, network or system associated therewith; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another's account that you are not expressly authorized to access;
- use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, or automated agents or scripts) to access this Site, or to register multiple accounts on this Site, or to generate automated searches, requests, or queries to this Site, or to strip, scrape, extract, or mine data or information from this Site (except, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from this Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file);
- remove, erase, conceal, alter, or otherwise tamper with any SwimOutlet or third-party intellectual property, attribution, or other legal notices that appear on this Site or any Site Content;
- frame, or otherwise create a browser or border environment around, any portion of this Site or any Site Content;
- use any Site Content: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes (unless with the express prior written consent of SwimOutlet); (ii) in any way that falsely suggests or implies an association or affiliation with, or endorsement, sponsorship or approval by, SwimOutlet; or (iii) in any way that defames or disparages SwimOutlet or its Suppliers; or
- 5.3 User Content. By submitting User Content on this Site (whether your submission is solicited or unsolicited), you expressly acknowledge and agree as follows:
- Your submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality. No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and SwimOutlet by reason of your submission. Your submission is not returnable and may be retained indefinitely by SwimOutlet and its successors and assigns.
- You represent and warrant that your submitted User Content does not contain private or confidential information and does not violate any third-party right or any applicable law.
- You expressly grant to SwimOutlet and its successors and assigns a non-exclusive, irrevocable, worldwide, perpetual, royalty-free, freely sublicensable, freely assignable and transferable, unlimited and unrestricted license to use, copy, reproduce, store, archive, modify, excerpt, adapt, translate, prepare derivative works based upon, publicly perform, publicly display, exhibit, broadcast, stream, publish, distribute, and otherwise exploit your submitted User Content and materials derived therefrom, in whole or in part, for any and all purposes (whether commercial or noncommercial, including, without limitation, for advertising, marketing, promotion, publicity, and product/service development, manufacturing, sale and distribution purposes) and in any and all media (whether now known or hereafter developed, including, without limitation, all forms of print, broadcast, electronic, Internet and social media) (collectively, "Licensed Uses"); it being understood and agreed that you will not have any right or claim to any compensation, payment, credit, attribution, notice, approval or inspection, and SwimOutlet and its successors and assigns will not have any duty, obligation or liability to you whatsoever, with respect to any Licensed Uses of your submitted User Content. The aforementioned license will continue and remain in full force and effect even if you subsequently cease using this Site or terminate your account with SwimOutlet or delete your submitted User Content from your account.
- 5.4 DMCA Policy. SwimOutlet respects the intellectual property of others and asks that users of this Site do the same. To comply with the Digital Millennium Copyright Act (Title 17, U.S. Code) (hereinafter, "DMCA"), SwimOutlet has adopted and implemented a policy that provides for the prompt removal of allegedly infringing User Content and for the termination of the account of any user who is determined by SwimOutlet to be a repeat infringer.
SwimOutlet's Designated Agent: The following is SwimOutlet's Designated Agent for receiving notifications of claimed copyright infringement:
1919 S. Bascom Ave., Suite 300
Campbell, CA 95008
Tel: (510) 386-0523
Notice of Claimed Copyright Infringement: Notification of claimed copyright infringement must be in writing and sent to SwimOutlet's Designated Agent listed above, and must include the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SwimOutlet to locate the material;
- information reasonably sufficient to permit SwimOutlet to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has 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; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Counter-Notification to Claimed Copyright Infringement: Under the DMCA, if a notice of copyright infringement has been filed against your User Content, you may make a counter-notification with SwimOutlet's Designated Agent listed above. The counter-notification must be in writing and include the following information:
- your physical or electronic signature;
- identification 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;
- a statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of California, U.S.A., if you reside outside of the U.S.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
Upon receiving a valid counter-notification, SwimOutlet may reinstate the removed or disabled User Content in accordance with the DMCA.
Please note that, under the DMCA, any person who knowingly makes material misrepresentations in a notification of claimed infringement or in a counter-notification may be liable for damages.
- 5.6 Linking to SwimOutlet. You may link to this Site, provided that you comply with the following terms and conditions:
- Your link must be a text-only link. The SwimOutlet logo may not be used for linking purposes, except with the express prior written consent of SwimOutlet.
- You do not frame or otherwise create a browser or border environment around any portion of this Site or any Site Content.
- You do not link to this Site from any adult or sexually oriented website.
- You do not misrepresent or falsely suggest that your website or product or service is sponsored, endorsed or approved by, or affiliated with, SwimOutlet.
- You do not disparage SwimOutlet, or publish false, misleading or inaccurate information about SwimOutlet.
You also acknowledge and agree that SwimOutlet is under no obligation to support your link to this Site and may block traffic from your website at any time and for any reason.
- (i) your use or misuse of, or your reliance upon, this Site or any Site Content or another's User Content;
- (iii) any of your User Content;
- (iv) your use or disposal of any product purchased from this Site; or
- (v) your use of any Third-Party Site/Product/Service.
NOTE: This provision does not require you to indemnify any of SwimOutlet and Related Parties for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with this Site.
SwimOutlet reserves the right, at your expense, to assume the legal defense of a Third Party Claim for which you are required to indemnify SwimOutlet and its Suppliers, and you agree to fully cooperate with SwimOutlet in such legal defense. You agree not to settle any Third Party Claim for which you are required to indemnify SwimOutlet and its Suppliers, without the express prior written consent of SwimOutlet. SwimOutlet will use reasonable efforts to notify you in the event SwimOutlet receives notice of a Third Party Claim for which you are required to indemnify SwimOutlet and its Suppliers; however, SwimOutlet's failure to so notify you will not in any way excuse or relieve you from your indemnity obligations hereunder.
7. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. By using this Site, you acknowledge and agree as follows:
- (i) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, SWIMOUTLET AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, SWIMOUTLET AND ITS SUPPLIERS DO NOT WARRANT THAT: (A) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT WILL BE ACCURATE, ERROR-FREE, UP TO DATE, COMPLETE, OR USEFUL, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECT OR ERROR IN THIS SITE (INCLUDING ANY SITE CONTENT) OR IN ANY USER CONTENT WILL BE CORRECTED; OR (C) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT WILL BE SECURE AND FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT.
- (ii) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SWIMOUTLET AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER USER (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS, PROFIT, REVENUE OR GOODWILL, OR LOST OR WASTED STAFF TIME) ARISING OUT OF OR RELATED TO THIS SITE OR ANY SITE CONTENT, OR ANY USER CONTENT, OR THE PROVISION OR USE OF ANY OF THE FOREGOING, EVEN IF SWIMOUTLET AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- (iii) IN NO EVENT SHALL SWIMOUTLET AND/OR ITS SUPPLIERS BE LIABLE TO YOU IN CONNECTION WITH A PURCHASE YOU MAKE ON THIS SITE, FOR ANY DAMAGES IN EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE PURCHASE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. ACCORDINGLY, NOTHING IN THIS SECTION 7 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER; CHOICE OF LAW.
- (i) We encourage you to contact our Customer Service department if you have concerns or complaints about SwimOutlet. Generally, customer complaints can be satisfactorily resolved in this way. If we cannot resolve your concerns informally, disputes between you and SwimOutlet shall be resolved pursuant to this Section 8.
- (iii) Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Under this Agreement, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys' fees, if the applicable law allows. BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND SWIMOUTLET AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT (except small claims court). Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court's authority.
- (v) The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's award shall be final and may be enforced in any court of competent jurisdiction.
- (vi) In the event that you are able to demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to costs of litigation, SwimOutlet will pay as much of your arbitration filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. SwimOutlet also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration. However, SwimOutlet will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
- (vii) YOU AND SWIMOUTLET AGREE THAT ANY CLAIMS BROUGHT BY YOU OR SWIMOUTLET WILL BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. You and SwimOutlet agree to seek only such individual relief – whether in the form of individual damages, an individualized injunction, or other non-monetary individual relief – as is necessary to resolve any individual injury that either you or SwimOutlet has suffered or may suffer.
- (viii) The requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member ("Class Action Waiver") is non-severable. If the Class Action Waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, with the exception of the next sentence. In the event the Class Action Waiver is found to be unenforceable, or in the event the agreement to arbitrate is found to not apply to a dispute, that such action between you and SwimOutlet shall proceed in the federal or state courts located in Santa Clara County, California.
11. CONTACT US.
Office of the President
Spiraledge, Inc., c/o SwimOutlet.com
1919 South Bascom Avenue, Suite 300
Campbell, California 95008
Copyright © 2018 Spiraledge, Inc. All rights reserved.