Updated 22 October 2016
Shwimmer is an electronic marketplace that connects the global swimming community of swimmers, pool owners, instructors, lifeguards, event planners and other providers of related services.
Shwimmer is owned and operated by Shwimmer Ltd (Company number 08188196) with registered address: The Rectory 1 Toomers Wharf, Canal Walk, Newbury, Berkshire, RG14 1DY, United Kingdom.
Shwimmer Services are available through the Shwimmer website (https://shwimmer.com), mobile, tablet applications and Application Programming Interface (API). Shwimmer Services enable registered Users over the age of 18 years old to transact between themselves at their own risk to list, discover, book and pay for swimming related services provided by other Users to the extent permitted by applicable law.
By using the Shwimmer Services, Users agree to comply with and be legally bound by the terms and conditions of these Terms of Service (“Terms”). These Terms govern Users’ access to and use of Shwimmer Services and all Collective Content, and Users’ participation in the “Free Shwimmer” Loyalty and Referral Program, and constitute a binding legal agreement between Users and Shwimmer.
Shwimmer Community Standards are provided for information purposes only and do not form part of these Terms. Shwimmer does not guarantee that Users will adhere to our published Community Standards and does not take responsibility for the conduct of Users.
If Users do not agree to these Terms in their entirety and without modification, Users have no right to use Shwimmer in any way whatsoever. Failure to use Shwimmer in accordance with these Terms may subject Users to civil and criminal penalties.
SHWIMMER SERVICES ENABLE USERS OF THE PLATFORM TO DISCOVER AND ACCESS SERVICES LISTED BY OTHER SHWIMMER USERS. SERVICES LISTED BY USERS ON THE PLATFORM ARE CALLED PROVIDER SERVICES, AND THEY ARE DISTINCT FROM SHWIMMER SERVICES. SHWIMMER SERVICES ARE LIMITED TO LISTING, SEARCHING, BOOKING AND PAYMENT FOR PROVIDER SERVICES. SHWIMMER IS NOT A PARTY TO ANY AGREEMENT ENTERED INTO BETWEEN USERS IN RELATION TO PROVIDER SERVICES. TRANSACTIONS BETWEEN USERS IN RELATION TO PROVIDER SERVICES ARE AT THE USERS OWN RISK. SHWIMMER HAS NO CONTROL OVER THE CONDUCT OF USERS IN THE PROVISION OR USAGE OF PROVIDER SERVICES AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Users consent to and will abide by the most current version of these Terms. Shwimmer may at any time, without prior notice and at its sole discretion modify these Terms. Users agree to review the Terms periodically for changes. The most up to date version of the Terms will be available on the Shwimmer website.
Shwimmer reserves the right to recover the cost of Shwimmer Services, collection charges and lawyers’ fees from Users using Shwimmer fraudulently or unlawfully. Shwimmer reserves the right to initiate legal proceedings against such Users for fraudulent use of Shwimmer Services and any other unlawful acts or acts or omissions in breach of the Terms.
BY REGISTERING WITH SHWIMMER, USERS ARE DEEMED TO HAVE READ AND AGREED TO THE FOLLOWING TERMS AND CONDITIONS SET FORTH HEREIN. ANY INCIDENTAL DOCUMENTS AND LINKS MENTIONED SHALL BE CONSIDERED TO BE ACCEPTED JOINTLY WITH THESE TERMS. USERS AGREE TO USE THE SERVICES OF SHWIMMER ONLY IN STRICT INTERPRETATION AND ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION. ANY ACTIONS OR COMMITMENTS MADE WITHOUT REGARD TO THESE TERMS SHALL BE AT USERS’ OWN RISK. THESE TERMS AND CONDITIONS FORM THE ENTIRE AGREEMENT BETWEEN THE USER AND SHWIMMER.
|“Account”||means the Accounts created by the Users on Shwimmer in order to use Shwimmer Services and requires personal information such as name, address, contact number, email address, etc.|
|“Amenity Fee”||means any additional charges for amenities that may not be included in Listing Fees and which are not paid for through Shwimmer, e.g. refreshments. Amenity fees may be settled directly between the Customer and Provider.|
|“Booking Request Period”||means 24 hours from the time when a booking is requested by a Customer, within which a Provider may decide to reject that booking request. The Booking Request Period may not apply to every type of booking on Shwimmer.|
|“Collective Content”||means User Content and Shwimmer Content.|
|“Content”||means text, graphics, images, music, software, audio, video, information or other materials.|
|“Customer Fees”||means the fee that Shwimmer charges a Customer for booking Provider Services via Shwimmer, which is calculated as a percentage of the applicable Listing Fees.|
|“Customer Guest”||means the person or a group of people for whom the Customer books the Provider Services on Shwimmer. Customer Guests may include people who are less than 18 years old. The Customer is fully responsible for the conduct and safety of Customer Guests.|
|“Customer”||means any person of 18 years of age or above with an Account who requests a booking through Shwimmer in order to use Provider Services.|
|“Featured Listing”||is a Listing on Shwimmer that is given prominence in search results as a result of a commercial agreement between Shwimmer and the Provider.|
|“Free Shwimmer”||is a loyalty programme that builds the Shwimmer network by encouraging referrals, which may be modified or withdrawn at any time at the sole discretion of Shwimmer.|
|“Free Swim Rate”||Is an agreed number of Free Swims that are made available to Shwimmer in proportion to the number of bookings that Customers make through Shwimmer with the Pool Owner.|
|“Free Swim”||means a single swim of one hour (or a single session, as appropriate) at the Home Pool for the Customer. Free Swims are not transferable or redeemable for cash or equivalents.|
|“Home Pool”||means the commercial or public sector pool on the Shwimmer network that is nearest to the Customer’s registered home address, or other pool as designated by Shwimmer at its sole discretion.|
|“Launch Swims”||is an agreed number of Free Swims that are made available to Shwimmer by the Pool Owner when a new pool is listed.|
|“Linked Services”||means services created by Third Parties that are incorporated into or available through Shwimmer|
|“Listing Fees”||means the amounts that are due and payable by a Customer for use of Provider Services. The Provider alone, and not Shwimmer, determines these amounts. The Provider may include in this amount any Taxes that the Provider determines should be included. If a Tax is not displayed, then it will be deemed to be included.|
|“Listing”||means Provider Services listed and available to book through Shwimmer|
|“Organisational Owner”||means any swimming pool owner that is not a natural person, such a commercial pool operator, public sector operator, hotel, health club, educational institution or any other organisation owning the swimming pool and related facilities.|
|“PII”||means Personally Identifiable Information such as name, age, contact number, gender etc. of the Users which is collected by Shwimmer during the Account registration process and can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.|
|“Pool Owners”||means the owners of swimming pools who list on Shwimmer. Owners include natural persons and organisations.|
|“Pools”||means and include swimming pools and related facilities such as changing areas, showers, as made available by Providers to Customers on Shwimmer.|
|“Private Owner”||means a natural person who owns a private swimming pool and related facilities, or has the authority to list the private swimming pool and related services in Shwimmer.|
|“Promotional Swims”||is an agreed number of Free Swims that are made available by the Pool Owner to Shwimmer during promotional periods|
|“Provider Cancellation Policy”||Means the cancellation policy set by the Provider which may form part of Provider Terms and which are accepted when the Customer makes a booking.|
|“Provider Fees”||means the fee that Shwimmer charges a Provider for the use of its online platform, which is calculated as a percentage of the applicable Listing Fees.|
|“Provider Services”||means and includes usage of swimming pools and adjacent facilities, swimming instruction, lifeguarding, events such as pool parties and other services which are permitted to be listed on the Shwimmer platform.|
|“Provider Terms”||means the terms and conditions, regulations, guidelines and other rules made available by the Provider to the Customer that govern the terms on which the Provider Service is offered. At the point of booking, the Customer enters into a direct agreement with the Provider and accepts Provider Terms in full and without modification. Shwimmer is NOT party to this agreement between Customer and Provider.|
|“Provider”||means Pool Owners, lifeguards, instructors, event planners and other suppliers who list Provider Services on Shwimmer.|
|“Shwimmer Cancellation Policy”||means the cancellation policies published by Shwimmer and which forms a term of this agreement.|
|“Shwimmer Content”||means all Content that Shwimmer makes available through Shwimmer Services including any Content licensed from a Third Party, but excluding User Content.|
|“Shwimmer Fees”||means collectively the Provider Fees and the Customer Fees.|
|“Shwimmer Services”||comprise an electronic platform to enable Users to list, search, book and pay for Provider Services. Shwimmer Services only pertain to the Listing, booking and payment for the Provider Services, and not for the provision of Provider Services. Shwimmer Services include the website, mobile, tablet and Application Programming Interface (API) interfaces.|
|“Shwimmer Site”||means the online platform available at https://shwimmer.com|
|“Shwimmer”||is a trading name of Shwimmer Ltd and is the provider of Shwimmer Services.|
|“Tax” or “Taxes”||means any sales tax, value added taxes (VAT), goods and services taxes (GST) and any other levies that Providers may be required by law to collect and remit to governmental agencies, and other taxes.|
|“Third Parties”||means any outside parties which are not a part of Shwimmer.|
|“User Content”||means all Content that a User posts, uploads, publishes, submits or transmits to be made available through Shwimmer. User Content includes listings, reviews, forum posts and all other content generated by users and available on Shwimmer.|
|“User”||means a person who completes Shwimmer’s account registration process and has agreed to be bound by these Terms. User means and includes Customers and Providers.|
2.1 Shwimmer Services are available only to, and may only be used by, persons who are 18 years and older who can form legally binding contracts under applicable law, or businesses, Government agencies, charitable institutions, partnerships, companies and sole traders. Users represent and warrant that they are at least 18 years old.
2.2 Representatives of Organisational Pool Owners represent and warrant that they are authorised to execute contracts on behalf of the legal entity that owns or operates the pool and related facilities. It is the responsibility of the Pool Owner to inform Shwimmer of any change in contact persons or authorised representatives.
2.3 Shwimmer may, in its sole discretion, refuse to offer access to or use Shwimmer Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access Shwimmer is revoked in such jurisdictions.
3.1 The official language of these Terms shall be English. In case any conflict exists between translations of the Terms and the English language version, the English language version shall prevail.
3.2 The headings and sub-headings are merely for convenience purpose and shall not be used for interpretation.
3.3 In case any conflict exists between machine and human readable versions of the Terms, the human readable version shall prevail.
- SHWIMMER SERVICES
4.1 Shwimmer Services can be used by Providers to create listings for Provider Services. Listings on Shwimmer are created and maintained by Providers.
4.2 The Listings and other related information are available for public view by the Users.
4.3 Customers book the Provider Services in the Listings using Shwimmer.
4.4 In order to book a Listing or to post a Listing, all Users, whether Customers or Providers, must register with Shwimmer. Shwimmer may utilise methods to verify the identity of Users, including the use of Third Party services, but does not make any representations about, confirm, or endorse any User or the User’s purported identity, background or profile.
4.5 Users acknowledge that Shwimmer DOES NOT own, possess, resell, rent, re-rent, provide, maintain, manage and/or control any Pools and does not offer any Provider Services. All of the Listings are created by Providers and are the sole responsibility of the Providers.
4.6 Shwimmer has no ownership rights and Shwimmer DOES NOT enter into any transaction when Listings of Provider Services are made.
4.7 Shwimmer shall serve as the limited payment collection agent for the sole purpose of accepting payments from Customers on behalf of Providers.
4.8 Providers shall provide to the Customers the Provider Terms. It is the sole responsibility of the Provider to ensure that Customers are informed of Provider Terms, either posted in the Listing or referenced therein. Customers agree to, and accept, Provider Terms when they make a booking through Shwimmer. Providers must satisfy themselves that a Customer booking through Shwimmer constitutes acceptance of Provider Terms in full and without modification.
4.9 Shwimmer shall not be a party to the agreement between the Customer and the Provider for Provider Services or in relation to Provider Terms. Shwimmer is not responsible for the performance of the agreement between the Customer and the Provider. Any disputes arising in the relationship between the Customer and the Provider in relation to Provider Services must be resolved directly between the Customer and the Provider, without the involvement of Shwimmer.
4.10 Customers shall be fully responsible to ensure that Customer Guests follow Provider Terms. Customers shall solely be responsible for the safety, conduct, acts or omissions of their Guests in relation to their use of Provider Services.
4.11 SHWIMMER DOES NOT ACCEPT ANY LIABILITY FOR ANY CONDUCT, ACTION, OMMISSION OR TRANSACTION COMMITTED BY USERS IN RELATION TO PROVIDER SERVICES. USERS REPRESENT AND WARRANT THAT THEY ENTER INTO AGREEMENTS IN RELATION TO PROVIDER SERVICES FREELY AND AT THEIR OWN RISK. SHWIMMER SERVICES DO NOT INCLUDE DUE DILLIGENCE REGARDING THE LISTINGS OR OTHER REPRESENTATIONS THAT USERS MAKE ON THE SHWIMMER PLATFORM.
4.12 Free Shwimmer Loyalty Program:
a) The Free Shwimmer Program may be modified at any time at the sole discretion of Shwimmer.
b) “Free Shwimmer” enables Shwimmer at its sole discretion to award Free Swims to Users to reward actions or behavior, such as referring other Users.
c) Free Swims are provided by the Pool Owner to Shwimmer according to the “Free Swim Rate”. The Free Swim Rate may be varied from time to time. The default Free Swim rate is for the Pool Owner to provide one Free Swim for every ten successful bookings made using Shwimmer
d) Pool Owners contribute a fixed number of Free Swims at the onset of using Shwimmer, which are called “Launch Swims”, and at other times as may be agreed, which are called “Promotional Swims”. The initial fixed amount of Launch Swims is zero for Private Owners and five Free Swims for Organizational Owners, or as otherwise agreed between the parties from time to time
e) Free Swims used will be set off against payments made by Shwimmer to the Pool Owners
f) Customers who have received Free Swims are able to make a booking against the available stock of Free Swims only.
g) Once Free Swims are awarded to the Customer they are added to Customer’s Account. Free Swims are valid until they are utilized, at which point they are extinguished. Free Swims lapse if not utilized within 6 months.
h) Free Swims are not transferable or redeemable in cash or equivalents.
i) Customers may claim only one Launch Swim.
- SHWIMMER REGISTRATION
5.1 Registering on Shwimmer is mandatory in order make use of the Services. It is free for Users to register on Shwimmer. Shwimmer reserves the right to validate and verify information provided by Users in the registration process, including the usage by Shwimmer of Third Parties. Shwimmer does not endorse, certify or guarantee any User with respect to their identity, trustworthiness, safety or suitability. Users interact with each other on Shwimmer at their own risk and Shwimmer is not responsible for any damage or harm resulting from these interactions.
a) In order to use Shwimmer, Users must register for an Account with Shwimmer and provide certain PII such as name, address, contact number, email address, City, State, Country, Age group, etc.
b) Users represent and warrant that all required registration information they submit is truthful and accurate, and Users will maintain the accuracy of such information. Users are responsible for maintaining the confidentiality of their Account login information and are fully responsible for all activities that occur under their Account. Users agree to immediately notify Shwimmer of any unauthorized use, or suspected unauthorized use of their Account or any other breach of security. Shwimmer will not be liable for any loss or damage arising from Users’ failure to comply with the above requirements.
5.3 Without limiting the foregoing, in the event that Users change any of their personal information, Users will update their Account information promptly.
5.4 When creating an Account, Users shall not:
a) Provide any false personal information to Shwimmer (including without limitation a false username) or create any Account for anyone other than themselves without such other person’s permission;
b) Use a username that is the name of another person with the intent to impersonate that person;
c) Use a username that is subject to rights of another person without appropriate authorization;
d) Use a username that is offensive, vulgar or obscene or otherwise in bad taste.
5.5 Shwimmer reserves the right to suspend or terminate User’s Account if any information provided during the registration process or thereafter proves to be inaccurate, false, misleading or to reclaim any username that Users create through the Service that violates Shwimmer’s Terms. Users are responsible for maintaining the confidentiality of their password and Account, and agree to notify Shwimmer if their password is lost, stolen, or disclosed to an unauthorized Third Party, or otherwise may have been compromised. Users are responsible for activities that occur under their Account.
- ACCESS TO SHWIMMER SERVICES
6.1 Shwimmer Services are only available to persons over the age 18. Nothing in this clause shall prevent Shwimmer from suspending or terminating User’s Account as per provisions laid down in these Terms and Conditions. The right to access the Services is based on following conditions:
a) No User is permitted to have more than one Account at a time.
b) The User must not create another Account if their first Account has been terminated or suspended by Shwimmer.
c) The User must not operate the Account of any other person.
d) The User must not have an Account to use Shwimmer services when it is illegal in his country to do so.
e) The User shall at no point of time sell, rent, lease, sublicense, gift or transfer his Account or any related information that may be used to operate his/her account to any other person without prior permission of Shwimmer.
f) The User shall use his/her Account only for lawful purposes and no illegal conduct shall happen from the User’s Account.
7.1 Providers are allowed to create and post Listings of Provider Services. Providers will be asked to provide information in order to post their Listing effectively. This will include information about the Provider Services, and will include but not be limited to location, area, size and pricing. Providers will be asked to provide Shwimmer with Provider Terms which will form part of the listing. If the Provider Terms are not made available in full through Shwimmer, then the Provider will direct the Customer to an alternative source of Provider Terms outside of Shwimmer. It is the sole responsibility of the Provider to ensure that the Provider Terms are accepted by the Customer upon the booking of a Listing.
7.2 In order to feature in Listings all Provider Services must have and provide valid physical addresses. Listings will be made publicly available via Shwimmer, with the exception of closed, private or “invitation only” Provider Services. Customers will be able to book Provider Services based upon the information provided in the Listings. Shwimmer cannot and does not verify the accuracy of the Listings, and is not responsible or liable for the consequences of any inaccuracies.
7.3 Providers shall be allowed to list, advertise/upload photos and videos that represent Provider Services.
7.4 Users acknowledge and agree that Providers alone are responsible for any and all Listings and User Content produced by them. Accordingly, Providers represent and warrant that any Listing of Provider Services (i) will not breach any agreements Providers have entered into with any Third Parties such as property owners, property managers, Lessors or Landlords, and (ii) will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to the Provider’s Listing (including having all required insurances, permits, licenses and registrations). Shwimmer assumes no responsibility for a Provider’s compliance with any laws, rules, regulations, local ordinances or duties to Third Parties.
7.5 Providers represent and warrant that they are authorised to provide the Provider Services and are also compliant with all relevant laws and regulations. The Provider indemnifies Shwimmer against any claims that arise due to Provider not being authorised to offer the Provider Services, or from the Provider Services not being in full compliance with all relevant laws and regulations.
7.6 Shwimmer shall at its sole discretion set minimum standards for Listings and reject or remove any Listings that do not meet these standards. Shwimmer reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Shwimmer, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to Shwimmer.
7.7 Shwimmer has the sole right to determine the order in which Listings are presented to the Users, and may determine the order through whatever factors it chooses to implement, including commercial factors including but not limited to payments received from Providers in order to post “Featured Listings”.
7.8 When Providers create a Listing, they may also choose to include their own eligibility requirements which must be met by the Customers in order to make a booking. Providers have the right to refuse booking requests from Customers who do not meet their eligibility requirements, provided that these eligibility requirements are lawful in the jurisdiction of the Provider.
7.9 Shwimmer does not provide any insurance coverage to any User. Users should satisfy themselves that they are adequately insured to provide and use Provider Services. Provision and usage of Provider Services is at Users’ own risk. Shwimmer specifically disclaims all and any responsibility over the condition of Pools to the maximum extent permitted by law.
7.10 Providers represent and warrant that they are adequately insured to make Provider Services available through Shwimmer. Any dispute, claims or damages arising from actions or inactions of Customers or Customer Guests are to be resolved between Users. Shwimmer is not a party to any dispute or claim that may arise as a result of the usage of Provider Services.
7.11 The pricing for Provider Services is set by the Provider in their own currency and must include any taxes that the Provider is required to apply according with local regulations. Providers must not submit a Listing with false or misleading price information, or submit any Listing with a price that the Provider does not intend to accept. Shwimmer is not responsible for the pricing of Provider Services.
7.12 The pricing of Provider Services can be altered and changed prior to a Customer making a booking. The pricing of bookings already made may not be amended by the Provider.
7.13 The contents of any Listing are the sole responsibility and liability of the Providers. All Users expressly acknowledge that they are responsible for the authenticity and veracity of the information posted by them, and acknowledge that Shwimmer does not make any representation as to the identity of Users or the information that they provide on Shwimmer.
7.14 Customers expressly consent to the fact that Shwimmer does not act as a guarantor or insurer for the conduct of the Providers or any of the Listing they have posted.
7.15 SHWIMMER DOES NOT ENDORSE OR ASSSOCIATE WITH ANY USER. NONE OF SHWIMMER’S ACTIONS SHALL BE CONSTRUED AS AN ENDORSEMENT OF A USER OR LISTING, INCLUDING “FEATURED LISTINGS”.
7.16 Shwimmer does not accept or assume any liability for any Listing or conduct of the Users. Any claim or legal remedy, which is based on the content of a Listing or the conduct or actions of Users of Shwimmer’s services, shall be made against the Users themselves and Shwimmer shall not be a party to any such claim. BY USING THE SERVICES, AND THUS ACCEPTING SHWIMMER’S TERMS OF SERVICE, USERS EXPRESSLY WARRANT THAT USERS WILL LIMIT THEIR CLAIM FOR DAMAGES TO OTHER USERS ONLY AND WILL NOT INITIATE ANY PROCEEDING OR LEGAL PROCESS AGAINST SHWIMMER.
8.1 Shwimmer Fees are comprised of Customer Fees and Provider Fees. Customer Fees are 7.5% of Listing Fees. Provider Fees are 7.5% of Listing Fees.
8.2 Where applicable, Taxes (such as VAT) may also be charged in respect to Customer Fees and Provider Fees.
8.3 Shwimmer reserves the right to change, alter or amend Shwimmer Fees upon reasonable notice. New fee rates will not apply to existing bookings but will apply to all new bookings after the date that the new fees are introduced, altered or amended.
8.4 Customers shall be required to make the payment in full at the time of the booking for the total value of the booking.
8.5 Shwimmer shall make payments to the Providers in the next monthly payment cycle after the Provider Service has been fulfilled.
8.6 The price quoted in the Listings shall be in the currency of the Provider. Shwimmer will display prices to Customers in their own currency, and debit Customers in their own currency. Where it is not possible to debit Customers in their own currency then a third currency may be used at the sole discretion of Shwimmer.
8.7 Shwimmer shall maintain foreign exchange rates as used in the system. These rates shall be used to display prices in different currencies. Shwimmer shall not be liable for errors in foreign exchange rates provided by Third Parties.
8.8 Customers shall pay in their own currency and the Providers shall be paid in their own currency, or through alternative mechanisms as necessary to effect transactions at the sole discretion of Shwimmer.
8.9 Users shall make and receive payments by a range of payment instruments supported by Shwimmer’s Third Party payment processors. Shwimmer is not responsible for changes in foreign exchange rates, foreign exchange margins taken by any party, charges or fees deducted by payment processors or financial institutions at any point in the payment process.
- SEGREGATED BANK ACCOUNT
Shwimmer shall administer balances received from Users in a segregated bank account held at a commercial bank. No interest held on balances in these accounts shall be deemed payable to any User.
- THIRD PARTY PAYMENT GATEWAYS
Users expressly agree and acknowledge that Shwimmer may employ or collaborate with Third Party payment gateways in order to facilitate, distribute, transact and receive payments for Provider Services. Shwimmer reserves the right to change or replace the payment gateway at its sole discretion without any reservation or notice whatsoever. Shwimmer may store and process card and bank account information necessary to collect payments from, and make payments to, Users. Shwimmer is not liable for any loss of data or wrongful payment or invalid payment processing by Third Party payment gateways. Users agree that Shwimmer shall not be liable in any such dispute or legal claim.
- PROVIDER SERVICES
11.1 Providers expressly agree that the Provider shall be held responsible for the availability of the Provider Service to the User.
11.2 Providers represent and warrant that Provider Services are fit for purpose and conform to all relevant Health & Safety Standards.
11.3 At the point of booking Provider Services, Users enter into a direct contractual relationship with the Provider according to any terms and conditions, safety regulations and other rules that the Provider may make available to the User through the Shwimmer platform or by communications outside of Shwimmer Services. Shwimmer is not a party to this agreement between the Customer and Provider.
12.1 Providers may set the condition that Customer bookings must be confirmed by the Provider before being accepted. In this case, Shwimmer will provide information about the booking request to the Provider. The Provider must confirm the booking within 24 hours, or the booking will lapse automatically. If a booking lapses, then any funds debited or blocked from the Customer will be returned.
12.2 Shwimmer will send email confirmation of a booking to the Customer and to the Provider. The booking confirmation will include a booking reference number and all relevant details of the booking. Providers must ensure that all relevant staff members are properly trained to welcome Customers who book through Shwimmer.
12.3 If Providers owe or agree to pay any amount to Shwimmer then Shwimmer may withhold the amount owed from any payments made to the Provider as payment for the amount owed by the Providers to Shwimmer.
In the case of late or overdue payments made by Users, Shwimmer may charge additional fees related to the cost of collecting these amounts. Such fees or charges may include collection fees, convenience fees, or other Third Party charges. Users hereby explicitly agree that all communication in relation to such payments will be made by electronic mail or by telephone. Such communication may be made by Shwimmer or by anyone on its behalf, including but not limited to a Third Party collection agent.
12.4 No refund will be payable to the Customer in the event that they are unable to utilise the Provider Service due to unforeseen circumstances.
12.5 Shwimmer Users agree not to circumvent Shwimmer to access or book Provider Services, and to contract with Providers found through Shwimmer Listings directly through the Shwimmer Platform. If a Customer enters into a direct contract with a Provider to access Provider Services, then the Provider shall pay to Shwimmer 15% of the value of that contract in damages to Shwimmer. If the Provider sells a service to the Customer that includes Provider Services, in the knowledge that the Customer used the Shwimmer platform to find the Provider, then the Provider shall pay Shwimmer as if access to the Provider Services was obtained by the Customer through Shwimmer. Shwimmer reserves the right to terminate the account of any User that intentionally circumvents the Shwimmer Platform.
- CANCELLATION AND REFUND
13.1 The cancellation policy for Customers to cancel the Provider Service is set by the Provider within the parameters supported by Shwimmer Services. The default cancellation policy is that Customers may cancel bookings up to 24 hours before the time of the booking and receive a refund of Listing Fees less Shwimmer Fees. Shwimmer Fees are deemed to be paid at the point of booking and are non-refundable after this point. Shwimmer Fees are non-refundable regardless of the reason or timing for cancellation. No refund will be given for cancellations within 24 hours of the booking time.
13.2 The Provider shall communicate their cancellation policy through the Shwimmer platform, or alternative electronic mechanism.
13.3 If a Provider cancels a confirmed booking made via Shwimmer:
(i) The Provider will refund the Listing Fees for such booking to the applicable Customer within a commercially reasonable time of the cancellation, and
(ii) the Customer may receive an email or other communication from Shwimmer containing alternative Listings and other related information.
13.4 If Providers cancel a confirmed booking, they agree that Shwimmer may apply penalties or consequences to them or their Listing, including (i) publishing an automated review on their Listing indicating that a reservation was cancelled, (ii) keeping the calendar for their Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee to be withheld from future payments to the Provider by Shwimmer.
13.5 Shwimmer may decide, at its sole discretion, that it is necessary or desirable to cancel a confirmed booking. Shwimmer may also determine, in its sole discretion, to refund to the Customer part or all of the amounts charged to the Customer.
13.6 It is the responsibility of the Provider to communicate its refund policy to Users and to issue refunds to Users. Customers must request refunds from the Provider. All communications or disputes regarding refunds are between the Customer and the Provider and Shwimmer will not be responsible or liable in any way for refunds, errors in issuing refunds, or lack of refunds in connection with the Provider Services.
- PROHIBITED ACTIVITIES
14.1 Users will not use Shwimmer to:
a) Record, transmit, or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
b) Harm minors in any way;
c) Impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent User affiliation with a person or entity;
d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any messages or Content transmitted through Shwimmer;
e) Record, transmit, or otherwise make available any Content that Users do not have a right to make available under any law or under contractual or fiduciary relationships;
f) Record, transmit, or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of any party;
g) Record, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
h) Interfere with or disrupt Shwimmer or servers or networks connected to Shwimmer, or disobey any requirements, procedures, policies, or regulations of networks connected to the website;
i) Intentionally or unintentionally violate any applicable local, state, national, or international law and any regulations having the force of law;
j) “Stalk” or otherwise harass another; and/or
k) Collect or store personal data about any other User.
14.2 Users shall not post or share on Shwimmer any content that:
a) is offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
b) harasses or advocates harassment of another person;
c) exploits people in a sexual or violent manner;
d) contains nudity, violence, offensive subject matter or links to an adult website;
e) solicits or is designed to solicit personal information from anyone under age 18;
f) solicits or is designed to solicit an unwanted, inappropriate or unlawful relationship with another User;
g) publicly post information that poses or creates a privacy or security risk to any person;
h) promotes information that Users know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
i) constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work;
j) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”;
k) contains restricted or password only access pages or hidden pages or images;
l) furthers, promotes or depicts any illegal or criminal activity or enterprise or provides instructional information about illegal activities;
m) depicts firearms or other weapons;
n) solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from Users;
o) includes a photograph or video of another person that Users have posted without that person’s consent;
p) uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile; or
q) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
14.3 Shwimmer has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
14.4 Users acknowledge that while Shwimmer does not, in the ordinary course, access, review, or pre-screen Content, Shwimmer has the right, but not the obligation, in its sole discretion, to access, review, pre-screen, refuse, or remove any Content that is available via Shwimmer. Without limiting the foregoing, Shwimmer the right to remove any Content that violates these Terms or is otherwise objectionable in its sole discretion. Shwimmer also reserves the right to access, preserve, and disclose any Content or information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce these Terms, including, but not limited to, investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, or (e) protect the rights, or safety of Shwimmer and its Users.
- USER’S RIGHTS AND LICENSE TO CONTENT
15.1 By posting or uploading Content using Shwimmer, Users grant Shwimmer a limited, perpetual, irrevocable, worldwide, non-exclusive, royalty-free, transferable license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, create derivative works of, transmit, host, display, and distribute such Content in any and all media or distribution methods.
15.2 Users agree that this license includes the right for Shwimmer to modify or adapt their Content in order to transmit, display, or distribute it over telecommunications networks and in various media and/or make changes to their Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services, or media.
15.3 Users are solely responsible for their use of Shwimmer, for any Content they provide, and for any consequences thereof, including, but not limited to, the use of their Content by Shwimmer. Without limiting the foregoing, Users represent and warrant that they have all the rights, power, and authority necessary to grant the rights granted herein to any Content that they submit.
15.4 Users will indemnify and hold Shwimmer harmless from and against any and all claims, suits, disputes, actions, losses, judgments, and costs (including, but not limited to, attorneys’ fees) arising out of or relating to any one or more of the following: (a) their use of or access to Shwimmer, (b) their provision of any Content or other information to or through Shwimmer, (c) any Third Party claim that any Content Users provide infringes, misappropriates, or otherwise violates any Rights, and (d) Users violation of any of these Terms.
- SHWIMMER’S RIGHTS
All right, title, and interest in and to Shwimmer (excluding Content provided by the Users) are and will remain the exclusive property of Shwimmer Ltd and its licensors. Shwimmer is protected by copyright, trademark, and the laws of England and Wales. Nothing in these Terms gives Users a right to use Shwimmer’s name or its trademark or logo, or any other trademarks, logos, domain names, or other distinctive brand features relating to Shwimmer or located on Shwimmer. Any feedback, comments, and suggestions Users may provide regarding Shwimmer (“Feedback”) are entirely voluntary and Users grant Shwimmer a perpetual, irrevocable, worldwide, royalty-free license (with the right to sublicense) to use, reproduce, modify, create derivative works of, commercialize, and otherwise freely exploit such Feedback (including, but not limited to, all Rights therein) as Shwimmer sees fit and without any payment or other obligation to Users.
- APPLICATION STORES
Users acknowledge and agree that the availability of the Application is dependent on the Application Store from which Users received the Application License. Users acknowledge that the Terms are between Users and Shwimmer and not with the Application Store. Shwimmer, not the Application Store, is solely responsible for the properties of the Application, including the Content thereof, maintenance, support services, warranty, and addressing any claims relating thereto. In order to use the Application, Users must have access to a wireless network or other internet enabled network, and Users agree to pay all fees associated with such access. Users also agree to pay all fees, if any, charged by the Application Store. Users’ license to use the Application is conditioned upon their compliance with all applicable Third-Party terms of agreement. Users acknowledge that the Application Store and its subsidiaries are Third-Party beneficiaries of these Terms and Conditions and will have the right to enforce them.
- INTELLECTUAL PROPERTY RIGHTS
18.1 Shwimmer contains Content owned by Shwimmer Ltd. Shwimmer Content is protected by copyright, trademark, patent, trade secret and other laws, and Shwimmer owns and retains all rights in its Content and the Services. From time to time, Shwimmer may make available to Users certain explicitly designated Content for their use, but only for such purposes as may be explicitly stated at the time that Shwimmer’s licensed elements are made available on Shwimmer; but Shwimmer and its licensors and certain other Third Parties, as the case may be, retain ownership of such licensed elements. The foregoing limited license: (i) does not give Users any ownership of, or any other intellectual property interest in, any Shwimmer Content, and (ii) may be immediately suspended or terminated for any reason, in its sole discretion, and without advance notice or liability. In some instances, Shwimmer may permit Users to have greater access to and use of Shwimmer’s Content and/or its licensed elements, subject to certain additional terms. Users are only granted a limited license, and, as between Users and Shwimmer, there is not a sale with respect to Shwimmer’s Content.
18.2 Shwimmer respects the intellectual property rights of others and expects Users of the Services to do the same. Shwimmer will respond to notices of alleged copyright infringement that comply with applicable law and are promptly and properly provided to Shwimmer. If Users have a reason to believe that their Content has been copied in a way that constitutes copyright infringement, please provide us with the following information:
(i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
(ii) identification of the copyrighted work claimed to have been infringed;
(iii) 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 Shwimmer to locate the material;
(iv) User contact information, including address, telephone number and email address;
(v) a statement by User that he/she 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
(vi) a statement that the information in the notification is accurate, and that Users are authorized to act on behalf of the copyright owner.
18.3 Shwimmer has the right to remove the Content alleged to be in breach of clause 14.2 without prior notice, at its sole discretion, and without liability to Users. In appropriate circumstances, Shwimmer will terminate a User’s Account if Shwimmer determines that the User has breached clause 14.2.
19.1 The Terms will continue to apply until terminated by either Users or Shwimmer as set forth below:
- Users may end their membership with Shwimmer at any time for any reason by deactivating their Accounts and discontinuing their use of Shwimmer. If Users stop using Shwimmer without deactivating their Accounts, Shwimmer may deactivate their Accounts due to prolonged inactivity.
- Shwimmer may suspend or terminate Users’ Accounts, reclaim their username, or cease providing Users with all or part of Shwimmer Service at any time for any reason without any liability to Users, including, but not limited to, if Shwimmer reasonably believes that: (i) Users have violated these Terms; (ii) Users create risk or possible legal exposure for Shwimmer; or (iii) provisions of Shwimmer to Users is no longer commercially viable. Shwimmer will make reasonable efforts to notify Users of any suspension or termination of their Account by the email address associated with their Account, or other means.
19.2 Nothing in this Section will limit or affect Shwimmer’s rights to change, limit, or stop the provision of the Shwimmer’s Service without prior notice.
- LINKS TO THIRD PARTY SITES
20.1 The Shwimmer Service may include links to other sites and services that are not operated by Shwimmer. Shwimmer provides these links to Users only as a convenience and is not responsible for the Content or links displayed on such sites.
20.2 Users are responsible for and assume all risk arising from their use or reliance of any Third Party sites. Users may access tools through Shwimmer that enable them to export information, including without limitation Content, to Third Party services. By using these tools, Users agree that Shwimmer may transfer such information to the applicable Third-Party service. Such Third Party services are not under Shwimmer’s control, and Shwimmer is not responsible for Users use of their exported information.
20.3 Linked Services created by Third Party developers may be available on, through or in connection with Shwimmer Services. Linked Services include applications, websites, desktop, wireless, mobile and other services available from Third Parties which can be installed onto a User Profile, or elsewhere on Shwimmer Services, shared with Users on Shwimmer, otherwise accessed via Shwimmer, or which may link to a User’s Profile from outside of Shwimmer.
20.5 In addition, the Third Party providing the Linked Service may use other parties to provide services to Users, such as technology, development or payment services. Shwimmer may have limited control or no control at all over the Content, operations, policies, terms, or other elements of Linked Service, and Shwimmer does not assume any obligation to review any Linked Service. Shwimmer does not endorse, approve, or sponsor any Linked Service, or any Third-Party Content, advertising, information, materials, products, services, or other items.
20.6 Shwimmer is not responsible for the quality or delivery of the services offered, accessed, obtained by or advertised at such Linked Services and make no warranties, express or implied, as to the Linked Services or the providers of such Linked Services (including, but not limited to, the privacy practices thereof). Shwimmer encourages Users not to provide any personal information to any Linked Service unless Users know and are comfortable with the Third Party.
20.7 Shwimmer will under no circumstances be liable for any direct, indirect, incidental or special loss or other damages, 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 Linked Services. Any activities Users engage in with any of the same, including but not limited to the provision of Content or data to them, are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Service.
- LIMITATION OF LIABILITY
21.1 SHWIMMER SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUES. SHWIMMER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES. SHWIMMER SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES RESULTING FROM (A) USER’S ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE SHWIMMER; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (C) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY USING SHWIMMER, INCLUDING, BUT NOT LIMITED TO, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF USERS OR THIRD PARTIES; (D) ANY CONTENT OBTAINED FROM SHWIMMER; OR (E) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF USERS TRANSMISSIONS OR CONTENT. SHWIMMER SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES RESULTING FROM THE ACTS, OMISSIONS OR CONDUCT OF ANY SHWIMMER USER OR ANY CUSTOMER GUESTS
21.2 Except for Shwimmer’s obligations to pay amounts to applicable Providers pursuant to these Terms, in no event will Shwimmer’s aggregate liability arising out of or in connection with these Terms and Users’ use of the Site and Services including, but not limited to, from Listing or booking of any Provider Service via the Site, or from the use of or inability to use the Site, Services, or Collective Content and in connection with any Provider Service or interactions with any other Users, exceed the amounts that Users have paid or owe for bookings via the Site and Services as a Customer in the three (3) month period prior to the event giving rise to the liability, or in the case of Providers, the amounts paid by Shwimmer in the three (3) month period prior to the event giving rise to the liability, or one hundred US dollars ($100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the agreement between Shwimmer and the User.
- NO WARRANTY AS TO THE IDENTITY OF THE USERS
22.1 Shwimmer takes reasonable precautions to collect accurate information about the identity of the Users. Shwimmer expressly states that Shwimmer does not provide any warranty as to the identity of Users or any information which has been provided by Users.
22.2 Shwimmer may display User information such as the social rating, geographical location, or Third Party background check or verification of identity or credentials. However, such information is based solely on data that the User submits and Shwimmer provides such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by Shwimmer.
- NO WARRANTY AS TO SHWIMMER’S CONTENT
23.1 The Shwimmer Site, Services and Collective Content are provided “as is”, without warranty of any kind, either express or implied. Without limiting the foregoing, Shwimmer explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of a course of dealing or usage of trade. Shwimmer gives no warranty that the site, services, collective content, including, but not limited to, the Listings or any Provider Services, will meet a Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. Shwimmer gives no warranty regarding the quality of any Listings, Provider Services, Shwimmer Services or Collective Content or the accuracy, timeliness, truthfulness, completeness or reliability of any Collective Content obtained through the Site, or Shwimmer Services.
23.2 Shwimmer Content is subject to change as and when required without any prior notice. Shwimmer does not expressly or impliedly regulate the information posted on Shwimmer by Users. Users agree that while some information posted on Shwimmer by Users may be offensive, harmful, inaccurate or misleading, mislabelled or deceptively labelled, Shwimmer is not liable or associated with the same in any way.
23.3 Users agree that the operation of Shwimmer is a complex task and due to some human, technological or accidental error Shwimmer may post Shwimmer Content which may be considered offensive, harmful, inaccurate or misleading, mislabelled or deceptively labelled. Users agree that they will notify Shwimmer to remove such Content instead of taking any legal recourse.
24.1 Users agree to indemnify and hold Shwimmer and its officers, directors, employees, consultants, affiliates, subsidiaries and agents harmless from and against any and all claims, costs, damages, liabilities, and expenses (including without limitation legal fees) that Shwimmer incurs in relation to or arising from (i) Users access to or use of Shwimmer, (ii) Users violation of the Terms or any applicable law or regulation, (iii) Users violation of any rights of any Third Party, including without limitation intellectual property rights or rights of publicity, confidentiality, or privacy; (iv) acts or conduct of Customer’s Guests or (v) any disputes or issues between Users and any Third Party.
24.2 Users agree that the provisions in this section will survive any termination of a User Account, these Terms and the User’s access to Shwimmer.
- GOVERNING LAW AND JURISDICTION
These Terms and any action related thereto will be governed by the laws of England and Wales without regard to or application of its conflict of law provisions or the User’s state or country of residence. Users agree to submit to the exclusive jurisdiction of the courts in England and Wales and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
- RESOLUTION OF DISPUTES AND JURISDICTION
26.1 Disputes with Shwimmer:
a) Any dispute arising from or relating to the subject matter of these Terms and Conditions shall be finally settled by arbitration in England and Wales using the English language in accordance with the Arbitration Rules and Procedures then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes.
b) The prevailing party in any arbitration or other proceeding arising under these Terms and Conditions shall be entitled to receive reimbursement of its reasonable expenses (including reasonable legal fees, expert witness fees and all other expenses) incurred in connection therewith.
c) Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
d) Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
e) Use of Shwimmer is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. Users and Shwimmer agree that any cause of action arising out of these Terms and Conditions or related to Shwimmer (including, but not limited to, any Services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
26.2 Disputes amongst Users or with Third Parties:
- ACCESS AND INTERFERENCE
27.1 Shwimmer may contain robot exclusion headers which contain internal rules for software usage. Much of the information on Shwimmer is updated on a real-time basis and is proprietary or is licensed to Shwimmer by its Users or Third-Parties. Users agree that Users will not use any robot, spider, scraper or other automated means to access Shwimmer for any purpose whatsoever, except to the extent expressly permitted by Shwimmer in writing. Additionally, Users agree that they will not:
a) Take any action that imposes, or may impose, in Shwimmer’s sole discretion, an unreasonable or disproportionately large load on Shwimmer’s technology infrastructure;
c) Interfere or attempt to interfere with the proper working of Shwimmer or any activities conducted on Shwimmer;
d) Bypass Shwimmer’s robot exclusion headers or other measures Shwimmer may use to prevent or restrict access to Shwimmer.
Shwimmer has employed commercially reasonable security measures to protect Users data stored on Shwimmer. Users must immediately notify Shwimmer on becoming aware of any unauthorized access, any illegal online activity or any other security breach pertaining to Shwimmer, their Account or Shwimmer Services and do everything under their control to mitigate the unauthorized access or security breach (including providing the evidence to Shwimmer and notifying the appropriate authorities). Users are solely responsible for securing their password. Shwimmer will not be liable for any direct or indirect loss or damage arising from unauthorized access of their Account as a result of Users failing to prevent such unauthorized access.
- EXPRESS RELEASE
In consideration of being permitted to access or use Shwimmer, Users and Customer’s Guests expressly agree to release Shwimmer (including its directors, agents, officers, employees, affiliates and subsidiaries) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with their disputes amongst themselves or Third Parties through or on Shwimmer.
IN CONNECTION WITH THE FOREGOING RELEASE, USERS WAIVE ANY APPLICABLE LAW OR STATUTE, WHICH LIMITS THE APPLICABILITY OF GENERAL RELEASES, INCLUDING LIMITATIONS TO CLAIMS THAT A USER MAY NOT KNOW OR SUSPECT EXISTS IN THEIR FAVOUR AT THE TIME OF EXECUTING THE RELEASE.
Notices may be given as follows: (i) electronic mail transmission; (ii) first class prepaid post or recorded delivery; (iii) express courier, cost prepaid to the email address Users provide to Shwimmer (either during the registration process or when User’s email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid.
32.1 Users will not assign any rights or delegate any obligations under these Terms, in whole or in part, by operation of law, merger, or otherwise, without obtaining Shwimmer’s prior written consent, which may be withheld in Shwimmer’s sole discretion. Any assignment or delegation in violation of the foregoing will be null and void. These Terms will be binding and inure to the benefit of each party’s permitted successors and assigns.
32.2 Shwimmer may assign its rights and delegate any of its obligations under these Terms, in whole or in part, without User’s consent.
- WAIVER AND SEVERABILITY
33.1 Shwimmer’s failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
33.2 In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary to comply with applicable law, and the remaining provisions of these Terms will remain in full force and effect.
- FORCE MAJEURE
34.1 Shwimmer shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, “Events of Force Majeure” such as:
a) act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);
b) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition, or embargo;
c) rebellion, revolution, insurrection, or military or usurped power, or civil war;
d) contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly;
e) riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of the Supplier or of his Subcontractors; or
f) acts or threats of terrorism.
- FOREIGN JURISDICTION
The Services of Shwimmer are accessible globally through the internet. By agreeing to Shwimmer’s Terms, Users warrant that it is completely legal to use Shwimmer’s Services in the User’s jurisdiction. It is the duty of the User to verify any potential violation. The User agrees to indemnify Shwimmer and any subsidiaries, employees, agents or any related individual or organization for any liability it might incur in a foreign jurisdiction. Shwimmer Services shall not be deemed to constitute an offer to sell or serve in countries where it is illegal to do so. Shwimmer reserves the right to monitor the location from which Users access Shwimmer and to block access from any jurisdiction in which participation is illegal or restricted.
- DAMAGE TO THE PROVIDER FACILITIES
36.1 The Customer shall be responsible for their own as well as their Guests’ acts and omissions which may cause damage to Provider facilities.
- GOOD FAITH
37.1 Users shall agree to work together for a safe use of the Provider Services. Customers shall agree to make secure payment for Provider Services via Shwimmer. Users agree that any transaction between them through Shwimmer is in relation to Provider Services.
37.2 Users shall act in good faith and solve any dispute through mediation and amicable solutions. Peaceful and legal ways shall be employed for any dispute resolution. Shwimmer shall not be a party to any dispute between Users, Customer Guests and Third Parties in any combination.
37.3 Users are solely responsible for any tax obligations and Shwimmer shall not be liable for any legal claim or liability which may be due to Users omission or act in relation to tax matters.
37.4 Users shall not use any unlawful means to impede or stop the smooth functioning of Shwimmer in any way. Users must take care that none of his actions or omissions, intentionally or negligently harm any commercial or related prospects of Shwimmer.
37.5 NO USER SHALL ACT AS AN AGENT OR AS A REPRESENTATIVE OF SHWIMMER. SHWIMMER DOES NOT SEND ANY UNSOLICITED MAILS AND SHWIMMER EXPRESSLY REJECTS ANY LIABILITY FROM UNSOLICTED MAILS SENT ON SHWIMMER’S BEHALF.
37.6 THE USERS SHALL INFORM SHWIMMER OF ANY ACTION OR OMMISSION ON THEIR PART OR OF SOME OTHER USER, WHICH ACCORDING TO THEM MAY HARM SHWIMMER, ITS SERVICES OR INTERESTS.
Users accepting or agreeing to these Terms on behalf of a company or other legal entity represent and warrant that they have the authority to bind that company or other legal entity to these Terms.
- CONSENT TO ELECTRONIC COMMUNICATIONS
The communications between Users and Shwimmer use electronic means, whether Users visit the Shwimmer or send e-mails, or whether Shwimmer posts notices or communicates with Users via email. For contractual purposes, Users (1) consent to receive communications from Shwimmer in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Shwimmer provides to Users electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Users statutory rights.
- DIGITAL SIGNATURE
40.1 By registering on Shwimmer, Users are deemed to have executed this Agreement electronically, effective on the date Users register their Account. User’s Account registration constitutes an acknowledgement that Users are able to electronically receive, download, and print this Agreement.
40.2 In connection with this Agreement, Users may be entitled to receive certain records, such as contracts, notices, and communications, in writing. To facilitate Users’ use of Shwimmer, Users give Shwimmer permission to provide these records to them electronically instead of in paper form.
40.3 By registering for an Account, Users consent to electronically receive and access, via email or via Shwimmer, all records and notices for the Services provided to Users under this Agreement that Shwimmer would otherwise be required to provide to Users in paper form. However, Shwimmer reserves the right, in its sole discretion, to communicate with Users via the Postal Service and other Third-Party mail Services using the address under which Users Account is registered. Users consent to receive records and notices electronically will remain in effect until Users withdraw it. Users may withdraw their consent to receive further records and notices electronically at any time by contacting Customer Support. If Users withdraw their consent to receive such records and notices electronically, Shwimmer will terminate Users access to Shwimmer, and Users will no longer be able to use Shwimmer Services. Any withdrawal of Users consent to receive records and notices electronically will be effective only after Shwimmer has a reasonable period of time to process users request for withdrawal. Please note that Users withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by Shwimmer to Users before the withdrawal of their consent becomes effective.
40.4 In order to ensure that Shwimmer is able to provide records and notices to Users electronically, Users must notify Shwimmer of any change in Users email address by updating their Account information on Shwimmer or by contacting Customer Support.
Shwimmer may post information about offers, notices, letters and other communication on the Shwimmer website or other applications.
- ENTIRE AND UNMODIFIED AGREEMENT
The Agreement, in connection with the other obligations and rules detailed in writing on Shwimmer constitutes the entire agreement between Users and Shwimmer and cannot be modified by Users. The Terms and Conditions cannot be modified on an individual basis by any person affiliated, or claiming affiliation, with Shwimmer. Nothing in this section will prevent Shwimmer from modifying the terms of these Terms and Conditions and posting such modifications on the Shwimmer Site.
- COMPLAINTS AND QUERIES
If Users are unhappy with any aspect of Shwimmer’s Services, or if Users have any queries or comments, they shall contact us on the Contact Us page on the Shwimmer Site.