Last updated: August 31, 2016
I. Prior to using the Swimplan service, it is important for you to know and understand that by visiting the Swimplan Website and/or using the Swimplan Service, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the Swimplan Service is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Swimplan Service or your use of the Swimplan Service.
III. By using the Swimplan Service, you consent to receiving this Agreement in electronic form. To withdraw this consent, you must cease using the Swimplan Service and terminate your account.
1. General Terms
1.1. These terms and conditions apply to your use of the Swimplan Website (swimplan.com) and the services offered by Swimplan Limited on the swimplan.com web pages (including web pages on any sub-domains of swimplan,com) described in clause 2 below ("Swimplan Service").
1.2. Terminology: In these terms and conditions, the following expressions have the meanings set out:
'member' means a registered member of Swimplan.com or any sub-domain of Swimplan.com;
'Swimplan Service' means any one or more of the services offered by Swimplan Limited from time to time, described in clause 2 below ("Swimplan Service").
'we', 'us' and 'our' are a reference to Swimplan Limited;
'you' and 'your' are a reference to you;
'Website' means any of our websites through which the services are offered.1.3. We reserve the right to change the terms, conditions, and notices under which the Swimplan Service is offered.
2. Swimplan Service
2.1. The Swimplan Service provides, among other things, an interface, which allows you to record your level of swimming ability and to receive personalised swimming workouts based on your recorded level of swimming ability.
2.2. Workouts can include swimming drills and swimming sets using different strokes at a variety of intensities. Workouts can include distances, target times, interval times, velocity (pace) and rest periods.
2.3. The Swimplan Service is automated. Workouts are generated using complex algorithms and mathematical equations. Workouts are not individually checked or validated by a human being.
2.4. Workout target times, interval times, velocity (pace) and rest periods are calculated using information that you record, including time trial data. You are responsible for controlling your target times, interval times, velocity (pace) and rest periods by adjusting your recorded time trials.
2.5. Some of the mathematical calculations use non-linear equations based on population data and as such your workout target times, interval times, velocity (pace) and rest periods may not be suitable for you.
2.6. Swimplan makes no claim as to the accuracy of the algorithms and mathematical equations used to generate workouts.
2.7. From time to time we may update or modify the algorithms and mathematical equations. Changes we make may change your workouts including calculated target times, interval times, velocity (pace) and rest periods.
2.8. Swimming workouts generated by Swimplan are only suggestions. You must decide whether workouts including the calculated target times, interval times velocity (pace) and rest periods are suitable for you.
2.9. You agree that you will not attempt to swim workouts that you deem are too challenging for you.
3. Health and Safety
3.1. Our website contains information about swimming and swimming training techniques. That information is not advice and should not be treated as such.
3.2. You should consult your physician or other health care practitioner before starting any exercise program. This is particularly true if you or your family have a history of high blood pressure or heart disease, or if you have ever experienced discomfort while exercising.
3.3. Nothing stated or posted on the Website is intended to be, and must not be taken to be, the practice of medical or professional advice or care.
3.4. If you are suffering from, or believe you may be suffering from, a sports or other injury, you should immediately consult an appropriate sports therapist or other medical professional.
3.5. You acknowledge and agree that you will be responsible for your own health and safety whilst swimming, and that we will not be liable to you for any injury you may suffer whilst following our workouts.
4. General Disclaimers
4.1. Swimplan provides the Swimplan Service on an "as is" and "as available" basis. You therefore use the Swimplan Service at your own risk.
4.2. Swimplan expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Swimplan makes no representations or warranties:
(a) That the Swimplan Service, or any particular fitness program is suitable for you;
(b) Regarding the adequacy or safety of the Swimplan Service for any particular user;
(c) That the Swimplan Service will meet your personal needs;
(d) That the Swimplan Service will be permitted in your jurisdiction;
(e) That the Swimplan Service will be uninterrupted or error-free;
(f) Concerning any content submitted by any member;
(g) Concerning any third party's use of content that you submit;
(h) That Swimplan will continue to support any particular feature of the Swimplan Service; or
(i) Concerning sites and resources outside of the Swimplan Service, even if linked to from the Swimplan Service.
4.3. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Swimplan Service. Swimplan has no obligation to screen or monitor any content and does not guarantee that any content made available on the Swimplan Service complies with this Agreement or is suitable for all users. Swimplan shall not be responsible for loss or corruption of data, and hereby waives all claims with respect to damage to Your computer system, internet access, download or display device.
4.4. To the extent that a secondary party may have access to or view Swimplan content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement.
4.5. To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Swimplan Service, and no warranties shall apply after such period.
5. License to Use the Swimplan Service
5.1. Swimplan grants you a limited, non-exclusive license to access and use the Swimplan Service for your own personal, non-commercial purposes. This includes the right to view and print your personalised workouts.
5.2. This license is personal to you and may not be assigned, or sublicensed to anyone else.
5.3. Except as expressly permitted by Swimplan in writing, you will not reproduce, redistribute, publicly display, sell, create derivative works from, decompile, reverse engineer, or disassemble the Swimplan Service. Nor will you take any measures to interfere with or damage the Swimplan Service. All rights not expressly granted by Swimplan are reserved.
5.4. Your use of the Swimplan Service through any applications or device constitutes your agreement to be bound by these Terms.
6. Member Account, Password, and Security
6.1. The Service requires you to open an account for your own personal use.
6.2. You must be at least 18 years old to use the Service.
6.3. NOTICE TO PARENTS AND GUARDIANS: You are responsible for monitoring and supervising your child's use of the Service. If your child is using the Service without your express consent and is under 18, please contact us immediately so that we can disable his or her access.
6.4. You must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form.
6.5. You are entirely responsible for any and all activities that occur under your account.
6.6. You agree to notify us immediately of any unauthorized use of your account or any other breach of security.
6.7. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by us or another party due to someone else using your account or password.
6.8. You may not use anyone else's account at any time, without the permission of the account holder.
7. No Unlawful or Prohibited Use
7.1. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
7.2. You may not use the Service in any manner, which could damage, disable, overburden, or impair any Swimplan Service(s) (or the network(s) connected to any Swimplan Service(s)) or interfere with any other party's use and enjoyment of any Swimplan Service.
7.3. You may not attempt to gain unauthorized access to any service, other accounts, computer systems or networks connected to any Swimplan Service, through hacking, password mining or any other means.
7.4. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Swimplan Service.
8. Content Guidelines
8.1. You agree not to post, upload or transmit to the Swimplan Website or to our servers ("Post") any communications, files, data, software, text, graphics, images, photographs, illustrations or other information or materials ("Material") that:
8.2. are obscene, fraudulent or indecent; defames, abuses, harasses or threatens others; contains any viruses, trojan horses, worms, time bombs or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, Material or personal information;
advocates or encourages any illegal activity; infringes upon the copyright, patent, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party;
violates the privacy of individuals, including other users of the Site; or
violates any applicable local, state, national or international law.
9. Our Rights.
9.1. We may delete from the Swimplan Website or otherwise deal with any material that we deem to be in breach of the Content Guidelines or otherwise objectionable for any reason without prior notice.
9.2. We may terminate your right to access and use the site in accordance with clause 4 of these terms and conditions if we believe that your conduct violates any applicable law or is harmful to our interests.
10. Use of the Site is at Your Risk
10.1. You use the Service at your own risk. You must evaluate, and bear all risks associated with the use of any content including reliance on the accuracy, completeness or usefulness of any content.
10.2. We endeavour to provide a convenient and functional service, but we do not guarantee or provide any other warranties that the provided content will be error free or that the Swimplan Website or Swimplan Service(s) or the server that operates them are free of viruses or other harmful components.
10.3. If your use of the Service results in the need for servicing or replacing property, material, equipment or data, we will not be responsible for such costs.
10.4. Without limiting the above provisions, to the extent permitted by law everything on the Swimplan Website and the Swimplan Service(s) is provided to you "as is" and "as available" without warranty or condition of any kind, either expressed or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement of the intellectual property rights of any third party. We exclude all representations and warranties to the extent not specifically included in these terms and conditions to the fullest extent permissible under any applicable law.
10.6. In using the Service you exonerate Swimplan Limited and any persons associated in anyway with the Service, in respect of all and every action or claim resulting from any accident, injury, death or illness which may be sustained during participation in the Service.
10.7. You agree to defend, indemnify and hold harmless Swimplan Limited, our officers, directors, and employees from and against all claims, actions or demands, liabilities, and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with your use of the Service or resulting from, or alleged to result from, your use of the Service or your violation of these terms and conditions.
11. Limitation of Liability
11.1. To the extent permitted by law:
11.2. our liability to you, whether for breach of these Terms and Conditions, whether arising in contract, negligence, in any other tort, or in equity or for any other common law or statutory cause of action arising in relation to these Terms and Conditions, the Swimplan Website, the Swimplan Service(s) or the provided content will not in the aggregate exceed an amount of NZD$200;
11.3. without limiting paragraph 7.2, we will not be liable for any incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity or loss of anticipated savings resulting from your access to, or use of, or inability to use the Swimplan Website, the Swimplan Service(s) and any provided content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not we know of the possibility of such damage; and
to the extent permitted at law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to the following:
in the case of goods: (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of such goods; (c) the payment of the cost of replacing the goods or acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired; and
in the case of services: (a) the supply of the services again; or (b) the payment of the cost of having services supplied again.
12. Copyright and Trademark Notices
12.1. All contents of the Swimplan Website are copyright 2016 Swimplan Limited, PO Box 32-146 Devonport , Auckland, New Zealand 0744. All rights reserved.
12.2. Swimplan and/or other Swimplan products referenced herein are either trademarks or registered trademarks of Swimplan Limited. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
12.3. Swimplan Limited owns and retains all proprietary rights in the Website and the Swimplan Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Website or through the Swimplan Service, without first obtaining the prior written consent of Swimplan Limited or, if such property is not owned by Swimplan Limited, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
12.4. Any rights not expressly granted herein are reserved.
13. Law and Jurisdiction
13.1. The Swimplan Service is provided under New Zealand law.
13.2. You may take action against us only in a New Zealand court.
13.3. To the extent allowed by law, you waive any right to pursue disputes on a class-wide basis; that is, to either join a claim with the claim of any other person or entity, or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.
13.4. Nothing herein shall limit Swimplan's right to object to subpoenas, claims, or other demands.
14. Successors; Assignment; No Third Party Beneficiaries
14.1. This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.
14.2. You may not assign this Agreement without Swimplan's prior written consent. No third party shall have any rights hereunder.
15.1. You consent to receive all communications including notices, agreements, disclosures, or other information from Swimplan electronically. Swimplan may provide all such communications by email or by posting them on the Swimplan Website. For support-related inquiries, you may send an email to email@example.com or the following address:
16.1. This Agreement may not be modified except by a revised Terms of Service posted by Swimplan on the Swimplan Website or a written amendment signed by an authorized representative of Swimplan.
16.2. A revised Terms of Service will be effective as of the date it is posted on the Swimplan Website.
17. ENTIRE AGREEMENT
17.1. This Agreement incorporates the following documents by reference: