SWISH-HOOP TERMS AND CONDITIONS

Last update January 31, 2017

IMPORTANT NOTE: THESE TERMS AND CONDITIONS (INCLUDING TERMS OF SERVICE AND TERMS OF SALE) CONTAIN A BINDING DISPUTE RESOLUTION CLAUSE AND CLASS ACTION WAIVER THAT MAY AFFECT YOUR RIGHTS CONCERNING ANY DISPUTE BETWEEN YOU AND SHOOTER’S TOUCH, LLC. PLEASE READ THEM.

TERMS OF SERVICE

CAREFULLY READ THESE TERMS OF SERVICE (“TERMS”). THEY ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SHOOTER’S TOUCH, LLC. (“Swish-Hoop,” “We,” “Us,” “Our”). BY SELECTING THE “I AGREE TO THE SWISH HOOP TERMS OF SERVICE” CHECKBOX OR BY DOWNLOADING OR INSTALLING SWISH-HOOP MOBILE APPLICATIONS (“APPLICATION”) YOU ARE INDICATING THAT YOU HAVE READ THE TERMS, THAT YOU UNDERSTAND THEM, AND THAT YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS, YOU SHOULD UNINSTALL ANY SWISH-HOOP APPLICATIONS AND DISCONTINUE USE OF THE SWISH-HOOP WEBSITE IMMEDIATELY. IF WE MAKE MATERIAL CHANGES TO THE TERMS, WE WILL POST AN UPDATED VERSION OF THE TERMS AND WE MAY PROVIDE YOU WITH FURTHER NOTICE OF THE CHANGES VIA EMAIL. NOTWITHSTANDING THE FOREGOING, IT IS YOUR RESPONSIBILITY TO CHECK THE TERMS PERIODICALLY FOR CHANGES. YOUR CONTINUED USE OF THE SWISH-HOOP SERVICE FOLLOWING THE POSTING OF ANY UPDATED TERMS CONSTITUTES YOUR ACCEPTANCE TO BE BOUND BY SUCH UPDATED TERMS. ANY AND ALL USE OF THE SWISH-HOOP SERVICE AFTER THE POSTING OF AN UPDATED TERMS WILL BE SUBJECT TO THE TERMS AND CONDITIONS OF SUCH UPDATED TERMS OF SERVICE.

Swish-Hoop (Shooter’s Touch, LLC) designs products that help users improve their performance and skills in basketball and other sports. They also allow users to monitor their own and other players’, teams’ and communities’ activities and performance. These Terms of Service (“Terms”) govern your use of our products, our websites, including www.SwishHoop.com, the software embedded in Swish-Hoop devices, and mobile applications, memberships and other Swish-Hoop services (collectively, the “Swish-Hoop Service”).

You must accept these Terms to create a Swish-Hoop account and to use the Swish-Hoop Service. If you do not have an account, you accept these Terms by visiting www.SwishHoop.com or using any part of the Swish-Hoop Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.SWISHHOOP.COM OR USE THE SWISH-HOOP SERVICE.

These Terms May Change

These Terms will likely change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.SwishHoop.com. We will notify you by email, through the Swish-Hoop Service, or by presenting you with a new Terms to accept if we make a modification that materially changes your rights. When you use the Swish-Hoop Service after a modification is posted, you are telling us that you accept the modified terms.

Read Our Privacy Policy

Any information that Swish-Hoop collects through your use of the Swish-Hoop Service is subject to the Swish-Hoop Privacy Policy, which is part of these Terms. If you have any objections to our Swish-Hoop Privacy Policy you must not use the Swish-Hoop Service.

Who Can Use Swish-Hoop Service?

You may use the Swish-Hoop Service if you are over 13 years of age and are not barred from receiving services under applicable law. If you are under 13 years of age, you may use the Swish-Hoop Service only if we received permission from your parent or guardian (see Swish-Hoop Privacy Policy for details). You may connect to the Swish-Hoop Service using a device that is manufactured, distributed, or sold by or on behalf of Swish-Hoop; the Swish-Hoop mobile applications; approved third-party applications; or www.SwishHoop.com (“Authorized Connections”). You may not connect to the Swish-Hoop Service with any device that is not manufactured, distributed, or sold by or on behalf of Swish-Hoop (such as a knock off or counterfeit version of a Swish-Hoop Product); otherwise intends to resemble or purports to be a Swish-Hoop Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Swish-Hoop Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact Support@SwishHoop.com.

Creating an Account

Full use of the Swish-Hoop Service requires that you create an account by providing us with a valid email address and strong, unique password. You are responsible for all activity that occurs in association with your account. Swish-Hoop is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. We may need to contact you about your use of the Swish-Hoop Service. These communications are part of the Swish-Hoop Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.

Necessary Equipment

Full use of the Swish-Hoop Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Swish-Hoop Service and it is your responsibility to ensure the equipment’s functionality.

Posting Your Content on the Swish-Hoop Service

You may post videos, photos, session results, drills, comments, and other content (“Your Content”) to the Swish-Hoop Service. You retain all rights to Your Content that you post to the Swish-Hoop Service. By making Your Content available on or through the Swish-Hoop Service you grant to Swish-Hoop a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the Swish-Hoop Service.

You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the Swish-Hoop Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.

You also agree that Your Content will comply with the following community guidelines:

Swish-Hoop’s Rights

“Swish-Hoop Content” includes any text, graphics, images, music, software, audio, video, drills, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Swish-Hoop Service to you. Except for Your Content, Swish-Hoop Content, the Swish-Hoop Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Swish-Hoop Service.

What You Can Do on the Swish-Hoop Service

The Swish-Hoop Service is intended for your personal, non-commercial use.

Swish-Hoop grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Swish-Hoop Content, (2) access and use the software and mobile applications provided by the Swish-Hoop Service, and (3) use the software that is embedded into Swish-Hoop products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Swish-Hoop Service as permitted in these Terms.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Swish-Hoop Content, Swish-Hoop Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Swish-Hoop or its licensors, except for the licenses and rights expressly granted in these Terms.

Things You Cannot Do on the Swish-Hoop Service

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Swish-Hoop Service: (1) use, display, mirror or frame the Swish-Hoop Service or any individual element within the Swish-Hoop Service, Swish-Hoop’s name, any Swish-Hoop trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Swish-Hoop’s express written consent; (2) access or tamper with non-public areas of the Swish-Hoop Service, Swish-Hoop’s computer systems, or the technical delivery systems of Swish-Hoop’s providers; (3) test the vulnerability of any Swish-Hoop system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Swish-Hoop or any of Swish-Hoop’s providers or any other third party (including another user) to protect the Swish-Hoop Service or Swish-Hoop Content; (5) access the Swish-Hoop Service or Swish-Hoop Content through the use of any mechanism other than through the use of an Authorized Connection, Swish-Hoop Service or Swish-Hoop API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Swish-Hoop provides to you or any other part of the Swish-Hoop Service.

Our Enforcement Rights

We are not obligated to monitor access or use of the Swish-Hoop Service, Swish-Hoop Content, or Your Content or to review or edit any Swish-Hoop Content or Your Content, but we have the right to do so for the purpose of operating the Swish-Hoop Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Swish-Hoop Service, any Swish-Hoop Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Swish-Hoop Content, Your Content, or your use of the Swish-Hoop Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Swish-Hoop Service.

Use the Swish-Hoop Service at Your Own Risk

Our goal is to provide helpful and accurate information on the Swish-Hoop Service, but we make no endorsement, representation or warranty of any kind about any Swish-Hoop Content, information, services or recommendations. The accuracy of the data collected and presented through the Swish-Hoop Service is not intended to match that of medical, scientific measurement or other devices.

We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Swish-Hoop Service. locations, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any Swish-Hoop Content or the Swish-Hoop Service, you do so solely at your own risk.

Consult Your Doctor before Using the Swish-Hoop Service

If you have a medical or heart condition, consult your doctor before using the Swish-Hoop Service or engaging in an exercise/fitness program. If you experience a medical emergency, stop using the Swish-Hoop Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, drills, consultations, products, or events you learn about through the Swish-Hoop Service. If you engage in any exercise program you receive or learn about through the Swish-Hoop Service you agree that you do so at your own risk and are voluntarily participating in these activities.

Use Common Sense

Use of the Swish-Hoop Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your Swish-Hoop product or service.

Additional Policies Apply To Product Orders

Swish-Hoop’s Terms of Sale and Return Policy and Warranty apply to purchases made through the Swish-Hoop store at www.SwishHoop.com. All orders placed are subject to Swish-Hoop’s acceptance. We may accept, decline, or place limits on your order for any reason.

Feedback and Submissions Policy

If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Swish-Hoop, or obtained from sources other than you.

We are always pleased to hear from the members of the Swish-Hoop community. However, neither Swish-Hoop, nor any of its employees, may accept or consider any unsolicited ideas, including ideas for new or improved products or services, new marketing campaigns or product or service names. Therefore, please do not submit any such unsolicited ideas in any form to Swish-Hoop or any of its employees. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.

If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (i) we shall have no obligation to review the submission; (ii) the submission and its contents shall automatically become the property of Swish-Hoop, without any compensation to you; (iii) we may consider the submission and its contents to be non-confidential and non-proprietary; and (iv) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you.

If a member of the Swish-Hoop community provides us (at our request or otherwise) a comment or suggestion regarding our products or services through any means, such as web forums, help forums or via any social network, the terms of the previous paragraph shall also apply thereto.

Contests and Giveaways

Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by Swish-Hoop and its partners. It is your responsibility to carefully review those terms and conditions.

You Agree to Receive Alerts and Notifications

As part of your use of the Swish-Hoop Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by your wireless carrier.

We are Not Responsible for Third-Party Links on the Swish-Hoop Service

The Swish-Hoop Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under Swish-Hoop’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.

Swish-Hoop Does Not Control Third-Party Services that You Link with Your Swish-Hoop Account

The Swish-Hoop Service may provide the opportunity for you to link your Swish-Hoop account, Swish-Hoop data, or the Swish-Hoop Service with Third-Party Services. Although we offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the Swish-Hoop Service are not part of the Swish-Hoop Service. You acknowledge that these Terms and the Swish-Hoop Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.

Changes to the Swish-Hoop Service

Swish-Hoop may change or discontinue, temporarily or permanently, any feature or component of the Swish-Hoop Service at any time without notice. Swish-Hoop is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Swish-Hoop Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Swish-Hoop products without prior notice to you.

Termination

If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete your data and other information related to your account. You may cancel your account at any time by contacting customer support by contacting Support@SwishHoop.com. Upon any termination, discontinuation or cancellation of the Swish-Hoop Service or your account, the following provisions of these Terms will survive: Posting Your Content On The Swish-Hoop Service; Swish-Hoop’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The Swish-Hoop Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.

Disclaimers

THE SWISH-HOOP SERVICE AND SWISH-HOOP CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Swish-Hoop Service or Swish-Hoop Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Swish-Hoop Service or any Swish-Hoop Content. You acknowledge and agree that if you rely on any Swish-Hoop Content or the Swish-Hoop Service, you do so solely at your own risk.

Indemnity

You will indemnify and hold harmless Swish-Hoop and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Swish-Hoop Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

Limitation of Liability

NEITHER SWISH-HOOP, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SWISH-HOOP SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SWISH-HOOP SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWISH-HOOP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL SWISH-HOOP’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SWISH-HOOP SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO SWISH-HOOP FOR USE OF THE SWISH-HOOP SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SWISH-HOOP, AS APPLICABLE.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWISH-HOOP AND YOU.

Dispute Resolution

You agree that any dispute between you and Swish-Hoop arising out of or relating to these Terms of Service, the Swish-Hoop Service, or any other Swish-Hoop products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts in the United States of America without regard to its conflict of laws principles.

Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Swish-Hoop, you agree to try to resolve the Dispute informally by contacting Support@SwishHoop.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Swish-Hoop may bring a formal proceeding.

We Both Agree to Arbitrate: You and Swish-Hoop agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below. Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting Legal@SwishHoop.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.

Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Boston, Massachusetts, or any other location we agree to.

Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Swish-Hoop will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate: Either you or Swish-Hoop may assert claims, if they qualify, in small claims court in Boston, Massachusetts. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Swish-Hoop products or Swish-Hoop Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

No Class Actions: You may only resolve Disputes with Swish-Hoop on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.

Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Swish-Hoop agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Boston, Massachusetts. Both you and Swish-Hoop consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial. Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Swish-Hoop products or Swish-Hoop Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

General Terms

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Swish-Hoop and you regarding the Swish-Hoop Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Swish-Hoop and you regarding the Swish-Hoop Service and Swish-Hoop Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without Swish-Hoop’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Swish-Hoop may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by Swish-Hoop under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Swish-Hoop Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

Swish-Hoop’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swish-Hoop. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Additional Terms May Apply

Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.

Contact Us

Please contact us if you have any questions about these Terms. Shooter’s Touch, LLC (DBA Swish Hoop) Support@SwishHoop.com

TERMS OF SALE

These terms of sale (“TOS”) apply to all orders accepted by Shooter’s Touch, LLC (dba Swish-Hoop) (“Swish-Hoop”) for the sale of its sporting equipment and software products (“Products”), except in the case that you and Swish-Hoop have executed a written agreement that supersedes these TOS. To the extent the Products contain or consist of software in any form (“Software”), such Software is licensed to you, not sold, and only in accordance with the section entitled “Software License”, below. Terms such as “sell” and “purchase”, as used in these TOS, apply only to the extent the Products consist of items other than Software.

ORDERING FROM THE SWISH-HOOP STORE

Orders

You can browse and place orders for our Products through, www.SwishHoop.com (the “Swish-Hoop Store”). We’ll ask you for your name, phone number, e-mail address, shipping and billing address, and other information so we can fulfill your order. When you place an order, Swish-Hoop’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. Swish-Hoop does not view or store your credit card information. We store your shipping address so we can process your order through our fulfillment partner. If you are logged into your Swish-Hoop account when you purchase something from the Swish-Hoop Store, we associate that order with your Swish-Hoop account. For more information on Swish-Hoop’s data use practices please see the Swish-Hoop Privacy Policy at www.SwishHoop.com/privacy-policy.

By placing an order through the Swish-Hoop Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use.

Pricing

Swish-Hoop can withdraw Products from the Swish-Hoop Store at any time and for any reason. Prices listed through the Swish-Hoop Store are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to Swish-Hoop. You agree to indemnify and hold Swish-Hoop harmless from and against any liabilities, interest, penalties or fees assessed against Swish-Hoop arising from your failure to pay any such taxes. All Product prices are subject to change at any time.

Acceptance and Fulfillment

All orders are subject to acceptance by Swish-Hoop. After you place an order, you will receive an email from Swish-Hoop confirming that Swish-Hoop has received it. Acceptance of your order will occur upon your receipt of another email from Swish-Hoop containing a shipping confirmation, tracking number and carrier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing a shipping confirmation, tracking number and carrier information. Swish-Hoop reserves the right not to accept your order for any reason or no reason. Swish-Hoop reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.

Resale

Purchases made through the Swish-Hoop Store are intended for end users only, and are not authorized for resale.

Shipping and Delivery

Swish-Hoop will pack the Products in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Products ordered, and will be charged shipping and handling charges accordingly. Title to the Products (except to the extent that the Products consist of Software) and risk of loss will pass to you upon Swish-Hoop’s delivery of the Products to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Swish-Hoop will make reasonable efforts to meet the scheduled shipment dates, but in no event will Swish-Hoop be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.

LIMITED PRODUCT WARRANTY

Swish-Hoop warrants to the original purchaser that your Product shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase. For full details on the Limited Product Warranty, please see www.SwishHoop.com/returns.

COMPATIBILITY

You acknowledge that you have verified the compatibility of the Products you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 45 day refund policy identified above.

LIMITATIONS ON LIABILITY

IN NO EVENT WILL SWISH-HOOP BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TOS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT SWISH-HOOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. SWISH-HOOP AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TOS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL SWISH-HOOP’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TOS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO SWISH-HOOP BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

SOFTWARE LICENSE

Swish-Hoop grants to you a nonexclusive, nontransferable license to use the Software, in executable form, solely as embedded in the Products, solely for your internal, non-commercial use. You may not copy or modify the Software. You acknowledge that the Software contains trade secrets of Swish-Hoop, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Swish-Hoop reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement.

DISPUTE RESOLUTION

You agree that any dispute between you and Swish-Hoop arising out of or relating to these TOS, or any other Swish-Hoop products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

Governing Law

The TOS and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws principles.

Informal Dispute Resolution

We want to address your concerns without needing a formal legal case. Before filing a claim against Swish-Hoop, you agree to try to resolve the Dispute informally by contacting Support@SwishHoop.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Swish-Hoop may bring a formal proceeding.

We Both Agree To Arbitrate

You and Swish-Hoop agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

Opt-out of Agreement to Arbitrate

You can decline this agreement to arbitrate by contacting Legal@SwishHoop.com within 30 days of first accepting these TOS and stating that you (include your first and last name) decline this arbitration agreement.

Arbitration Procedures

The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Boston, Massachusetts, United States or any other location we agree to.

Arbitration Fees

The AAA rules will govern payment of all arbitration fees. Swish-Hoop will pay all arbitration fees for claims less than $75,000. Swish-Hoop will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate

Either you or Swish-Hoop may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Swish-Hoop Products or services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

No Class Actions

You may only resolve Disputes with Swish-Hoop on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.

Judicial Forum for Disputes

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Swish-Hoop agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Boston, Massachusetts. Both you and Swish-Hoop consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

Limitation on Claims

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Swish-Hoop Products or services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

TERMS SPECIFIC TO SWISH-HOOP SUBSCRIPTIONS

The following Swish-Hoop Subscription Terms and Conditions (“Subscription Terms”) will apply to Swish-Hoop Subscription Services (defined below).

Swish-Hoop offers a number of subscription services to its account holders. These Subscription Terms govern your purchase and use of these services (collectively the “Subscription Service”), including custom goal, activity, food, sleep, and population comparison tracking, reporting, consulting or coaching, along with related products and services. Swish-Hoop account holders may access the Swish-Hoop Subscription Service by paid subscription, trial or promotion. Regardless of the method of access, these Subscription Terms apply to your access to the Subscription Service. In addition, the Swish-Hoop Terms of Service and Privacy Policy also apply, and any separate terms and conditions presented to you in conjunction with any trial or promotion also apply to your access to the Subscription Service. In the event these terms conflict with any additional terms, these Subscription Terms will control.

You accept these Subscription Terms by using any part of the Subscription Service. IF YOU DO NOT ACCEPT THESE SUBSCRIPTION TERMS, DO NOT ADD SUBSCRIPTION SERVICES TO YOUR ACCOUNT OR USE ANY OF THE SUBSCRIPTION SERVICES.

License to Use the Subscription Service.

By accepting these Subscription Terms and adding the Subscription Service to your account, Swish-Hoop hereby grants to you a license to use the Subscription Service solely for your personal, non-commercial use, subject to these Subscription Terms. The rights and limitations regarding Your Content and Swish-Hoop Content are governed by the Terms of Service.

Payments.

You agree to pay Swish-Hoop the stated fees for the Subscription Service for the duration of time and the amount you selected on the sign up page. You permit Swish-Hoop to charge this fee to your credit card and automatically renew the charge for the duration of your membership until you cancel. We use a third party credit card payment processor to process all payments.

Automatic Renewal and Cancellation.

Membership fees will be charged to your credit card and will automatically renew at the price then in effect for the duration of your membership until you cancel. Yearly memberships will automatically renew once a year. Cancellation of your membership can be done in the account settings area on www.SwishHoop.com. If you choose to cancel, your cancellation will take effect at the end of the term in which you cancelled. If your credit card is invalid for any reason, charged back, or if Swish-Hoop does not receive payment, we will cancel your member benefits immediately.

Term.

Unless terminated earlier, these Subscription Terms will remain in force as long as you are a paid subscriber of the Subscription Services or until your trial or promotion period has ended. If you terminate the Subscription Service, but continue to be a member of Swish-Hoop, the Swish-Hoop Terms of Service and Privacy Policy will still apply.

Refund Policy and Termination.

If Swish-Hoop cancels the entire Subscription Service, you may request a refund in writing within 30 days after the cancellation and receive a refund for the prorated amount of the fees for the Subscription Service. If you cancel within 30 days of joining or renewal, you are eligible, upon request, for a full refund. Termination of your Subscription Service account and the refund rights above are your sole remedies under these Subscription Terms and against Swish-Hoop in connection with Swish-Hoop's provision of the Subscription Service. Because Swish-Hoop reserves the right to alter or discontinue all or any portion of the Subscription Service under the Terms of Service, you should be sure to retain a copy of any materials you post, along with your user data.

Representations, Warranties and Covenants.

You represent, warrant and covenant that (a) the membership and credit card information that you supply is true, correct and complete, (b) you will pay any charges that you incur in connection with the Subscription Service, including any applicable taxes, (c) you will update your membership and credit card information as required, (d) you will not allow anyone else to use your membership, (e) you will not transfer your membership or password to anyone else and (f) you will report to us any unauthorized or prohibited use of your membership.

Amendment.

Subject to the termination and refund rights above, you agree that Swish-Hoop reserves the right to amend the Subscription Service and these Subscription Terms at any time and for any reason.

GENERAL PROVISIONS

The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.

You may not assign or transfer these TOS, or any order accepted by Swish-Hoop hereunder, in whole or in part, by operation of law or otherwise, without Swish-Hoop’s express prior written consent. Any attempt to do so, without Swish-Hoop’s consent, will be null and of no effect. Swish-Hoop may freely assign these TOS.

Swish-Hoop will not be responsible for any failure or delay in its performance under these TOS due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God. The failure by Swish-Hoop to enforce any provision of these TOS will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these TOS invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these TOS will remain in full force and effect.

These TOS constitute the complete and exclusive agreement between Swish-Hoop and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these TOS will be effective only if in writing and signed by duly authorized representatives of each party.

You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.

All notices required or permitted to be given under these TOS will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.

SWISH-HOOP RETURN AND WARRANTY

LIMITED PRODUCT WARRANTY

Swish-Hoop warrants to the original purchaser that your Swish-Hoop-branded device and Swish-Hoop-branded device accessories (collectively, the "Product") shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase (the "Warranty Period").

REMEDIES

If such a defect arises and a return authorization request is received by Swish-Hoop within the applicable Warranty Period, Swish-Hoop will, at its option and to the extent permitted by law, either (1) repair the Product at no charge, using new or refurbished replacement parts or (2) replace the Product with a new or refurbished Product. In the event of such a defect, to the extent permitted by law, these are your sole and exclusive remedies. Shipping and handling charges may apply except where prohibited by applicable law. This Limited Product Warranty is valid only in the jurisdictions where the Products are sold by Swish-Hoop itself or through its authorized reseller or agent and is valid to the extent permitted by the applicable laws of such jurisdictions. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for any additional period of time that may be required by applicable law.

HOW TO OBTAIN WARRANTY SERVICE

To obtain warranty service, a return authorization must be requested from our customer service team. To request a return authorization, please contact customer service: Support@SwishHoop.com. The return authorization number must be included along with your returned product. You must deliver the Product, in either its original packaging or packaging providing an equal degree of protection, to the address specified by Swish-Hoop. As may be required by applicable law, Swish-Hoop may require you to furnish proof of purchase details and/or comply with other requirements before receiving warranty service. It is your responsibility to backup any data, software, or other materials you may have stored or preserved on the Product. It is likely that such data, software, or other materials will be lost or reformatted during warranty service, and Swish-Hoop will not be responsible for any such loss.

EXCLUSIONS AND LIMITATIONS

Swish-Hoop does not warrant that the operation of the Product will be uninterrupted or error-free. This Limited Product Warranty does not cover software embedded in any Product and related services provided by Swish-Hoop. See the Swish-Hoop Terms of Service for details of your rights with respect to use of the software and related services.

Except where prohibited by applicable law, this Limited Product Warranty applies only to the original purchaser of the Product that was purchased from an authorized reseller or sales channel and manufactured by or for Swish-Hoop that can be identified by an authorized “Swish-Hoop” trademark, trade name, or logo affixed to it. Without limiting the foregoing, the Limited Product Warranty does not apply to any (a) Swish-Hoop products and services other than the Products, (b) non-Swish-Hoop products, even if included or sold with a Product, including, without limitation, any counterfeit products, (c) products that are, or Swish-Hoop reasonably believes to be, stolen, (d) consumables (such as batteries), or (e) software, even if packaged or sold with the Product or embedded in the Product. This Limited Product Warranty does not apply to products with the “Made for Swish-Hoop” or “Works with Swish-Hoop” logos. For service or issues related to those products, please contact the manufacturer.

This warranty does not apply to a Product or part of a Product that has been serviced, altered, refurbished, or modified by anyone who is not authorized by Swish-Hoop, nor does it apply to any cosmetic damage such as scratches and dents. In addition, this Limited Product Warranty does not apply to damage or defects caused by (a) use with non-Swish-Hoop products; (b) accident, abuse, misuse, mishandling, flood, fire, earthquake or other external causes; (c) normal wear and tear or aging of the Product such as discoloration or stretching; or (d) operating the Product (i) outside the permitted or intended uses described by Swish-Hoop, (ii) not in accordance with instructions provided by Swish-Hoop, or (iii) with improper voltage or power supply.

No Swish-Hoop reseller, distributor, agent or employee is authorized to make any modification, extension, or addition to this Limited Product Warranty. If any term contained herein is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.

IMPLIED WARRANTIES

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) SHALL BE LIMITED IN DURATION TO THE DURATION OF THIS LIMITED WARRANTY. Some jurisdictions do not allow limitations on the duration of an implied warranty, so the above limitation may not apply to you.

LIMITATION OF DAMAGES

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SWISH-HOOP SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR DATA, RESULTING FROM ANY BREACH OF EXPRESS OR IMPLIED WARRANTY OR CONDITION OR UNDER ANY OTHER LEGAL THEORY, EVEN IF SWISH-HOOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damages, so the above limitation or exclusion may not apply to you.

GOVERNING LAW

This Limited Warranty shall be governed by the laws of the Commonwealth of Massachusetts, USA, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.

NATIONAL STATUTORY RIGHTS

Consumers in some jurisdictions may have legal rights under applicable national legislation governing the sale of consumer goods, including, without limitation, national laws implementing EC Directive 99.