Terms of Service
Updated: August 22, 2019
These Terms of Service (this “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website located at https://www.formswim.com and the FORM mobile software application, each owned and operated by (“FORM”), and the services available thereon (collectively, “FORM Services”).
PLEASE CAREFULLY READ THIS AGREEMENT BEFORE REGISTERING FOR OR USING FORM SERVICES. THIS AGREEMENT IS A BINDING CONTRACT THAT GOVERNS USE OF FORM SERVICES, EXEMPTS FORM AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAINS OTHER IMPORTANT PROVISIONS.
BY ACCESSING OR USING FORM SERVICES, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE FORM SERVICES. IF YOU ARE DISSATISFIED WITH THIS AGREEMENT OR ANY RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO FORM SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF FORM SERVICES.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
- 1. Definitions: In this Agreement:
- (a) "Account" means an account for the use of FORM Services.
- (b) “Content" means text, information, graphics, photographs, images, audio, video, location data and other forms of data or communication.
- (c) “FORM Content” means: (i) Content that originates from FORM and its licensors and service providers (the “FORM Content”); (ii) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by third party service providers, including by Linked Services (“Third Party Service Content”); (iii) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by other users of FORM Services (“User Content”); and (iv) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by you for your own use or for use by other users of FORM Services (“Your Content”).
- (d) “FORM Goggles means the FORM Swim Goggles, a product containing smart display and activity tracking technology, manufactured by or on behalf of FORM that is compatible with FORM Software.
- (e) “FORM Group” means FORM and each of FORM’s affiliates, licensors, suppliers and service providers, and each of their respective directors, officers, employees, contractors, agents, shareholders, distributors and representatives, jointly and severally.
- (f) “FORM Software” means computer programs (including firmware, software and updates for FORM Goggles) designed to interoperate with the Services and licensed by you from FORM.
- (g) “Linked Service” means an online service or site (such as social networking, location tracking, fitness tracking and messaging) operated by a third party to which you have subscribed and which you link to your Account.
- (h) “Use” means any and all forms of use, including copy, reproduce, load, install, access, configure, reformat, modify, reformat adapt, alter, edit, change, delete, enhance, translate, adapt, host, store, backup, archive, combine with and incorporate into other works, create derivate works from, publish, publicly perform, publicly display, publicly distribute, distribute to the public, broadcast, exhibit, communicate to the public and otherwise fully exploit and use.
- (i) “User Device” means a personal computer, mobile phone or other mobile device that is owned or controlled by you and is compatible with FORM Software.
- 2. Other Agreements and Terms/Policies:
- (a) General: This Agreement are in addition to other agreements you may have with FORM, including agreements governing your purchase and use of FORM Goggles and agreements governing your installation and use of FORM Software (collectively the “Device/Software Agreements”).
- (b) Software Downloads: For your convenience, FORM Services may facilitate the downloading of computer software, including FORM Software. All software available for download through FORM Services is owned by or licensed from FORM or third parties, and the downloading and use of the software is subject to the software license agreement applicable to the software. FORM has no control over, or responsibility or liability for, any third party software downloaded from or through FORM Services, and FORM make no representations, warranties or conditions regarding the third party software. Your downloading and use of third party software and your dealings with the suppliers of the software is at your own risk, and you may not make any claim against FORM arising out of, connected with, or relating to your downloading and use of any third party software obtained through FORM Services.
- (c) Conflicts/Priority: If there is a conflict or inconsistency between this Agreement and any Device/Software Agreements, then: (i) Device/Software Agreements will take priority and govern regarding the specific FORM Goggles or FORM Software to which they apply; and (ii) this Agreement will take priority and govern regarding FORM Services and FORM Content.
- 3. Changes to this Agreement:FORM in its discretion may modify this Agreement at any time, without any prior notice to you, by posting the modified Agreement at https://www.formswim.com/terms-of-service. The modified Agreement will be effective immediately upon posting on, unless the modified Agreement expressly states otherwise. It is your responsibility to check the “Updated” date at the top of this Agreement and review any changes since the previous version. By using FORM Services after this Agreement has been modified, you signify your acceptance and agreement to the modified Agreement. You may not change, supplement or amend this Agreement in any manner.
- 4. Restrictions/Changes/Availability: FORM Services and FORM Content may contain technologies that restrict or limit the use or functionality of FORM Services and FORM Content (including based on time or location). FORM in its discretion and for its sole convenience may change, suspend, discontinue, modify, restrict, remove, delete, disable, cancel or terminate any or all FORM Services or FORM Content (including Your Content), or limit your access to or use of any or all FORM Services or FORM Content (including Your Content), at any time without notice or liability to you or any other person. FORM Services and FORM Content may be interrupted or unavailable from time to time, including for routine (scheduled) and emergency (unscheduled) maintenance, upgrades and repairs or due to the failure of telecommunications links and infrastructure that are beyond the control of FORM, all without notice or liability to you or any other person.
- 5. Eligible Users:
- (a) Eligibility: In order to use FORM Services you must be of legal age (the age of majority) in the jurisdiction in which you live (which in most jurisdictions is either 18 or 19 years of age) and capable of forming a binding contract under applicable law (including the laws of the jurisdiction in which you are located). By applying for an Account or otherwise using FORM Services, you represent and warranty that you are eligible to use FORM Services as set forth in this Section 5(a) and that you are not prohibited from using FORM Services or FORM Content by applicable law (including the law of the jurisdiction in which you are located) or otherwise.
- (b) Youth and Children: If you are under 13 years of age (or the equivalent minimum age in your relevant jurisdiction including 16 years of age in the European Economic Area) (the “Minimum Age”), then you may not use FORM Services. If you are older than the Minimum Age but under the age of majority in the jurisdiction in which you live, then your parent or legal guardian may apply for an Account on your behalf and authorize you to use that Account and FORM Services under their supervision. In those circumstances, your parent/guardian is fully responsible and liable for your compliance with this Agreement and for your use of FORM Services.
- (c) Disqualification: You may not use FORM Services if you do not accept this Agreement, if you have breached this Agreement, if your permission to use FORM Services has been suspended or terminated by FORM, if this Agreement as they apply to you have been terminated or if you are located in a jurisdiction where access to or use of FORM Services or FORM Content is unlawful. Notwithstanding the foregoing or any other provision of this Agreement, FORM reserves the right in its discretion and for its sole convenience to refuse to provide FORM Services to you or any other person.
- 6. Permitted Use: Subject to this Agreement and all applicable laws, you may use FORM Services and FORM Content for your own lawful, personal use for non-commercial purposes only, only in the manner expressly permitted by FORM Services and FORM Software, and subject to the restrictions and requirements specified in this Agreement. Use of FORM Services or FORM Content for any other purpose or in any other manner is strictly prohibited.
- 7. Legal Compliance/Location/Language: You are solely responsible and liable for ensuring that your interaction with users of FORM Services and your use of FORM Services and FORM Content (including all of Your Content) complies with all applicable laws, including the laws of the jurisdiction in which you are located. FORM makes no representation or warranty that FORM Services or FORM Content are appropriate or available for use in any particular location. FORM Services and FORM Content are not available in all languages or in all countries.
- 8. Restrictions/Prohibitions: You may not: (a) use FORM Services or FORM Content in any manner or for any purpose except as expressly permitted by this Agreement; (b) use FORM Services or FORM Content for a commercial or business purpose (whether or not for profit) or for the benefit of any other person; (c) use FORM Services or FORM Content to violate any applicable law (including a law in the jurisdiction in which you are located); (d) use FORM Services or FORM Content in a way that interferes with or disrupts the integrity or performance of FORM Services or FORM Content or related systems or networks, or to attempt to gain unauthorized access to FORM Services or FORM Content or related systems or networks; (e) license, sublicense, grant, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, copy, reproduce, distribute, imitate, publish, republish, translate, repost, publicly display, public perform, transmit, distribute, create any interest in, commercially exploit or otherwise give or make available or permit access or use of FORM Services or FORM Content to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge; (f) index, crawl, catalogue, mirror, frame, scrape, cache or otherwise collect or mine data (including the names or contact information of other users of FORM Service) from FORM Services or FORM Content for any purpose whatsoever and using any technologies, tools or methods (including robots, spiders, crawler, or other automatic devices, programs or methodologies) whatsoever; (g) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve or translate FORM Services or FORM Content, create derivative works from or based on FORM Services or FORM Content, merge, embed or combine FORM Services or FORM Content with any other service, software or materials or reverse engineer, disassemble, decompile, convert into human readable format or otherwise attempt to access or derive the source code of, the software or other technologies used to provide FORM Services or FORM Content; (h) use FORM Services to upload, transmit or distribute any virus, worm, “Trojan Horse” or other code or routine that manifests contaminating or destructive properties that may damage, harm, detrimentally interfere with or otherwise adversely affect FORM Services or FORM Content or any computer system, hardware, software, equipment or services or any related data; (i) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices (including proprietary rights notices), proprietary codes or locks, means of identification, digital rights tools or management information, technological protection measures, security or control measures, or agreements on, in or in relation to FORM Services or FORM Content; (j) use multiplexing or pooling software or similar technologies in connection with FORM Services; (k) develop software applications for internal use with FORM Services; (l) attempt to gain unauthorized access to or use of FORM Services or FORM Content or any related computer system, network, hardware, software, equipment, service or data (including by hacking or password mining) or attempt to circumvent the ordinary navigational structure, technical delivery systems or display of FORM Services or FORM Content or attempt to access or use FORM Services or FORM Content by any means that is not purposely made available to you by FORM; (m) test or tamper with the security of FORM Services or FORM Content or attempt to interfere with the proper functionality, operation or performance of FORM Services or FORM Content or any other person’s use of FORM Services or FORM Content; (n) access or use FORM Services or FORM Content to: (i) create a competitive product or service, or a product or service using similar ideas, features, functions or graphics; (ii) copy any ideas, features, functions or graphics of FORM Services or FORM Content; or (iii) monitor or assess the availability, performance or functionality of FORM Services or FORM Content for any other benchmarking or competitive purposes; or (o) authorize, assist, encourage or enable any other person to do any of the foregoing or to use FORM Services or FORM Content in a way that would constitute an infringement of the rights of FORM or any other person or a breach of this Agreement if it were done by you.
- 9. Monitoring: FORM is not obliged to monitor the use of FORM Services or FORM Content (whether posted or transmitted publicly or privately), but FORM reserves the right to do so in FORM’s discretion (including for the purpose of operating FORM Services, verifying compliance with this Agreement or to comply with applicable laws or an order or requirement of a court, law enforcement authority, administrative or regulatory agency or other governmental body) without notice or liability to you or any other person.
- 10. Accounts/Credentials:
- (a) General: To access and use FORM Services you must sign up for an Account. At the time you sign up for an Account you must provide a valid user name and password or other sign-on method (such as your Facebook, Google or Apple account) that complies with FORM’s technical requirements (collectively “Credentials”). Without limiting the foregoing or any other provision of this Agreement, you will not use a user name that: (i) is the name of another person with the intention of impersonating that person; (ii) misappropriates, infringes or violates the rights of any other person or any applicable law; or (iii) is offensive, vulgar, obscene or otherwise in bad taste.
- (b) Restrictions: You may have only one Account. Your Account and Credentials are personal to you, and may not be shared with any other person. You may not create an Account for anyone else. You are fully responsible and liable for maintaining the confidentiality of your Credentials and for any and all use and misuse of your Account and Credentials (including all transactions using your Account or Credentials) and for all resulting loss, damage and liability. You may not disclose your Credentials to any other person or permit any other person to use your Account or Credentials.
- (c) Notices: You will immediately notify FORM’s customer care by using one of the methods available at support.formswim.com if you discover any unauthorized use of your Account or you know or suspect that your Credentials have been lost or stolen or become known to or used by any other person.
- (d) Reliance/Verification: FORM may act upon any communication that is given through your Account or by using your Credentials. FORM is not under any obligation to verify the actual identity or authority of any person using your Account or Credentials, but FORM in its discretion may at any time require verification of the identity of any person seeking to access your Account and may deny access to and use of your Account and FORM Services if FORM is not satisfied with the verification.
- (e) Suspension/Termination: FORM in its discretion may cancel or suspend your Account or reject, revoke or require that you change or renew your Credentials at any time without notice or liability to you or any other person, including if your Account is inactive or if your Credentials fail to comply with this Agreement. If your Account is suspended, cancelled or terminated by FORM, you may not create another Account without FORM’s express prior written consent.
- 11. Linked Services:
- (a) General: For your convenience, FORM Services may enable you to link your Account to one or more Linked Services. You may link your Account only to your own personal account for a Linked Service and only if permitted by the terms of service or other agreement that governs your use of the Linked Service. To activate and operate a link between your Account and a Linked Service, you may be required to provide us with your account information (including your username, password or other credentials) for the Linked Service. By linking a Linked Service to your Account, you expressly authorise FORM to collect, retain and use your account information for the Linked Service on your behalf and as your agent in order to provide you with access to the Linked Service through your Account and FORM Services.
- (b) Cancellation: You may cancel a link between your Account and a Linked Service at any time using the account provisioning tools made available through FORM Services. FORM may cancel a link between your Account and a Linked Service at any time without notice or liability to you or any other person.
- (c) Compliance/Responsibility: You are solely responsible for your selection and use of a Linked Service. Your access to and use of a Linked Service through FORM Services and the information, data and other content available through the Linked Service are subject to this Agreement and the terms of service or other agreements that govern your use of the Linked Service. You will ensure that your use of a Linked Service and the information, data and other content available through the Linked Service complies with the terms of service or other agreements that govern your use of the Linked Service and all applicable laws. Linked Services are independent from FORM, and FORM does not endorse, and has no responsibility or liability for or control over, Linked Services. Your use of Linked Services and your dealings with the owners or operators of Linked Services are at your own risk, and you will not make any claim against FORM arising from, connected with, or relating to your use of Linked Services or your dealings with the owners or operators of Linked Services.
- 12. Users and User Content: FORM is not obligated to screen or verify, and does not guarantee, the identity or background of any user of FORM Services. FORM is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any User Content (whether posted or transmitted publicly or privately), including information about other users of FORM Services. Some User Content may be offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. FORM has no responsibility or liability for or control over the conduct of users of FORM Services. You are solely responsible for your selection and use of User Content and your interactions with other users of FORM Services, and you interact with other users of FORM Services and access and use User Content at own risk. You will not make any claim against FORM arising from, connected with, or relating to your interactions with other users of FORM Services or your use of User Content. You will ensure that you take reasonable precautions (including conducting appropriate background checks) and exercise the utmost personal care in all interactions with other users of FORM Services, particularly if you disclose personal or financial information to other users of FORM Services or agree to meet in person with other users of FORM Services.
- 13. Third Party Service Content: FORM is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any Third Party Service Content (whether posted or transmitted publicly or privately). Some Third Party Service Content may be offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. FORM has no responsibility or liability for or control over Third Party Service Content or the providers of Third Party Service Content. You are solely responsible for your selection and use of Third Party Service Content and your interactions with the providers of Third Party Service Content, and you interact with those persons and access and use Third Party Service Content at own risk. You will not make any claim against FORM arising from, connected with, or relating to your use of Third Party Service Content or your interactions with providers of Third Party Service Content.
- 14. Accurate Information: To register with FORM Services, create an Account or use certain aspects of FORM Services, you are required to provide certain information about yourself (including your first and last name, email address, birthdate, gender, weight and height and other contact information) and certain authorizations or instructions. You represent and warrant that all information you provide is true, accurate, current and complete, and that you will update the information from time to time so that it remains true, accurate, current and complete. FORM will rely on the information that you provide. FORM is not under any obligation to verify the truth, accuracy, currency or completeness of any information you provide, but FORM may do so in its discretion, and you hereby consent to FORM making reasonable inquiries and investigations as FORM considers appropriate to verify the information you provide. You hereby authorize FORM to use, retain and disclose the information you provide as reasonably necessary to provide FORM Services and FORM Content to you and to otherwise perform FORM’s obligations and exercise FORM’s rights under this Agreement. You are and will remain solely responsible and liable for all loss, damage and liability (including additional costs) that you, FORM or any other person may incur as a result of your submission of any false, incorrect or incomplete information, your failure to promptly update your information if it changes, or other breach of your obligations under this Section 14. FORM may create and permanently retain records of all information and instructions you provide, your use of FORM Services and FORM Content, and all communications between you and FORM.
- 15. Your Content:
- (a) Responsibility and Compliance: Without limiting the generality of any other provision of this Agreement, you are solely responsible and liable for Your Content and for ensuring that Your Content complies with the restrictions and requirements set forth in this Agreement and all applicable laws (including the laws of the jurisdiction in which you are located). Without limiting the foregoing, Your Content must not: (i) be misleading, deceptive or fraudulent or otherwise illegal or promote illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes; (ii) be libelous or defamatory, or otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another’s privacy; (iii) be harmful to minors in any way; (iv) be hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or otherwise objectionable, as reasonably determined by FORM; or (v) impersonate a FORM employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
- (b) Content Licence: You hereby grant to FORM and its suppliers, service providers and licensees a non-exclusive, world-wide, unrestricted, transferable, sublicensable, royalty-free, fully paid-up, perpetual, irrevocable right and license to Use and to authorize other persons (including other users of FORM Services) to Use Your Content, using any and all media and technologies now in existence or developed in the future, for the purpose of providing FORM Services and FORM Content to you and other users of FORM Services. You hereby unconditionally and irrevocably waive and agree to waive in favour of FORM and its successors, assigns and licensee all moral rights and rights of authorship and attribution that you have or may have in, to or associated with Your Content (the “Content Licence”).
- (c) Aggregated Data: FORM retains the right to use or share any Aggregated Data generated by anyone using the FORM Services, including you and other users of the FORM Services, for any purpose including developing, enhancing and providing FORM Services and FORM’s other current and future products and services. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information.
- (d) Warranties: You represent and warrant to FORM that: (i) you own Your Content or otherwise have all requisite rights, licenses, permissions, consents, powers, authorizations, approvals and waivers to Use Your Content and grant the Content Licence; and (ii) the creation, possession and Use of Your Content will not misappropriate, infringe or violate any rights (including privacy rights, personality rights, publicity rights, contract rights and intellectual property rights, including copyrights, moral rights and trademark rights) of any other person, breach any duty or obligation (contractual or otherwise) owed by you to any other person or violate any applicable laws.
- (e) Review, Removal and Deletion: FORM is not obligated to review any of Your Content, but FORM in its discretion may do so without notice or liability to you or any other person. FORM in its discretion may reject, refuse to accept or post, remove or delete any of Your Content as FORM considers appropriate, including if you breach this Agreement or if FORM considers Your Content to violate this Agreement, without notice or liability to you or any other person. You may remove certain of Your Content from FORM Services by using the tools provided by FORM Services, but in certain instances, subject to applicable laws, some of Your Content (e.g. posts or comments) might not be completely removed and copies of Your Content might continue to exist and be accessible by other persons through FORM Services or otherwise (including by persons who have previously downloaded or otherwise copied Your Content). FORM is not responsible or liable for any removal or deletion of Your Content.
- (f) Retention by FORM: For greater certainty, and notwithstanding the foregoing in this Section 15 or any other provision of this Agreement, FORM may include copies of Your Content in FORM’s archives and back-up systems and may permanently retain copies of Your Content for legal compliance and administrative purposes.
- 16. FORM Privacy Statement: FORM Services collect data relating to your use of FORM Service, which data may include information regarding the location of the FORM Goggles and User Devices you use to access FORM Services. For further information, see FORM’s privacy statement available at https://www.formswim.com/privacy-policy.
- 17. Proprietary Rights in FORM Services/Content:
- (a) Ownership: FORM Services and FORM Content are protected by Canadian and international intellectual property rights and laws, including copyright and trademark. As between you and FORM: (a) FORM Services and FORM Content are owned solely by FORM and its licensors; (b) Your Content is owned solely by you; (c) User Content is owned solely by the individual who posts or otherwise makes the User Content available through FORM Services; and (d) Third Party Service Content is owned solely by the third party service provider who posts or otherwise makes the Third Party Service Content available through FORM Services. Your use of FORM Services and FORM Content does not transfer to you any right, title or interest in, to or associated with FORM Services, FORM Content, User Content or Third Party Content.
- (b) Trademarks: FORM™, FORM Athletica™ and related logos are registered or unregistered trademarks, service marks and trade names owned or licensed by FORM. Other product and company names and logos appearing on FORM Services or FORM Content may be registered or unregistered trademarks, service marks or trade names of their respective owners. Any use of the trademarks, service marks or trade names appearing on FORM Services or FORM Content is strictly prohibited, and nothing on FORM Services or FORM Content is or will be construed as granting, by implication, estoppel or otherwise, any licence or right to use any of those trademarks, service marks or trade names.
- (c) Feedback: You agree that if you provide any feedback (including any comments, ideas or suggestions for corrections, enhancements or improvements) to FORM regarding FORM Services or FORM Content, then FORM and its successors, assigns and licensees may use such feedback for any and all purposes (including to support, maintain and improve FORM Services, FORM Content and other FORM products and services) without providing any compensation or attribution to you or any other person.
- (d) Reservation of Rights: All rights not expressly granted by this Agreement are reserved by FORM.
- 18. Technical Requirements: You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including FORM Goggles and User Devices), software (including FORM Software) and services (including Internet access and mobile data services) necessary for your use of FORM Services and FORM Content and all data used in connection with FORM Services and FORM Content.
- 19. Technical Support: FORM is not obligated to provide technical support regarding FORM Services, but may do so in its discretion. Your use of FORM’s technical support regarding FORM Services is governed by this Agreement.
- 20. Data Storage/Backup: Even though FORM Services may store Your Content in accordance with this Agreement, FORM Services are not data storage or backup services. FORM is not responsible or liable for any loss or damage to Your Content. You are solely responsible for maintaining current and complete backup copies of Your Content using your own systems and services. If your Account is terminated, FORM in its discretion may immediately permanently delete and destroy all copies of Your Content stored in FORM Services without notice or liability to you or any other person.
- 21. Communications: You authorize FORM to: (a) accept communications it receives from you by means of FORM Software and FORM Services as if those communications had been given directly by you in writing and signed by you; and (b) respond to your communications through FORM Software and FORM Services, by email, by using a messaging functionality included in FORM Services or using other means of communication. Communications you send to FORM are not effective unless and until they are actually received and processed by the responsible FORM representative. FORM may refuse to process any communications sent to FORM, or may reverse the processing of any communications sent to FORM, at any time in FORM’s discretion, and without notice or liability to you or any other person, including if FORM believes the communication to be fraudulent or unlawful or defective, inaccurate or incomplete due to a technical malfunction.
- 22. Complaints/Enforcement:
- (a) Complaints: Complaints regarding FORM Content, copyright infringement, unauthorized use of personal information, misconduct by users of FORM Services or other matters may be made by contacting FORM using one of the methods available at support.formswim.com.
- (b) Enforcement: FORM is not under any obligation to enforce this Agreement or take other legal measures on your behalf against any other person (including another user of FORM Services). FORM reserves the right to respond to complaints as FORM considers appropriate in its discretion, all without notice or liability to you or any other person.
- (c) Disputes: FORM is not responsible or liable for monitoring or resolving disputes between you and any other user of FORM Services or FORM Content.
- (d) Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, FORM has adopted a policy of terminating, in appropriate circumstances and at FORM’s sole discretion, subscribers or Account holders who are deemed to be repeat infringers. FORM may also at its sole discretion limit access to FORM Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- (d) Copyright Complaint: If you believe that anything on the FORM Services infringes upon any copyright which you own
or control you may file a notification of such infringement with FORM’s Designated Agent as set forth below:
Name of Agent Designated to Receive Notification of Claimed Infringement: Legal - Copyright Claim
Full Address of Designated Agent to Which Notification Should be Sent:
200 - 1090 Homer Street, Vancouver, BC,
V6B 2W9, Canada
Email Address of Designated Agent: email@example.com.
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by FORM or the alleged infringer as the result of FORM relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
- 23. DISCLAIMERS, LIABILITY EXCLUSIONS/LIMITATIONS, AND INDEMNITY:
- (a) GENERAL DISCLAIMER: YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF FORM SERVICES, FORM CONTENT AND FORM SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, YOU INSTALL AND USE FORM SERVICES, FORM CONTENT AND FORM SOFTWARE AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, SUITABILITY, PERFORMANCE, ACCURACY AND EFFORT RESTS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FORM SERVICES, FORM CONTENT AND FORM SOFTWARE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO: ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, SECURITY, TIMELINESS, TITLE, TRUTHFULNESS, QUIET ENJOYMENT, UNINTERRUPTED SERVICE OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY FORM TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, FORM DOES NOT REPRESENT OR WARRANT THAT FORM SERVICES, FORM CONTENT OR FORM SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS OR DEFICIENCIES IN FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE CORRECTED OR THAT FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE COMPATIBLE OR OPERATE WITH ANY COMPUTER OR DEVICE, THIRD PARTY SOFTWARE OR SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF FORM OR ANY FORM REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE. IF YOU ARE DISSATISFIED WITH FORM SERVICES, FORM CONTENT OR FORM SOFTWARE, YOUR SOLE REMEDY IS TO CEASE USING FORM SERVICES, FORM CONTENT AND FORM SOFTWARE.
- (b) BETA VERSION DISCLAIMER: WITHOUT LIMITING THE GENERALITY OF SECTION 23(a), IF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE IS IDENTIFIED AS A “BETA VERSION”, THEN THE SERVICES, CONTENT OR SOFTWARE (AS APPLICABLE) IS STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION IS INTENDED TO WORK. FORM RESERVES THE RIGHT TO NOT RELEASE A FINAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE OR LIABILITY TO YOU OR ANY OTHER PERSON.
- (c) DISCLAIMER FOR OTHER SERVICES AND CONTENT: WITHOUT LIMITING THE GENERALITY OF SECTION 23(a), YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF LINKED SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL, PROVISION AND USE LINKED SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT AT YOUR OWN RISK. FORM DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND WHATSOEVER (INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS AS TO ACCURACY, COMPLETENESS OR TIMELINESS), WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING LINKED SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT. FORM DOES NOT CONTROL, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY LINKED SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT THAT YOU ACCESS THROUGH OR USE IN CONNECTION WITH FORM SERVICES, FORM CONTENT OR FORM SOFTWARE, OR FOR ANY RESULTING LOSS, DAMAGE OR LIABILITY.
- (d) DISCLAIMER FOR LOSS OF YOUR CONTENT: WITHOUT LIMITING THE GENERALITY OF SECTION 23(a), FORM IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, YOUR CONTENT, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD.
- (e) TECHNOLOGY DISCLAIMER: WITHOUT LIMITING THE GENERALITY OF SECTION 23(a), FORM SERVICES, FORM CONTENT AND FORM SOFTWARE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND FORM’S CONTROL, AND MAY NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE. FORM SERVICES, FORM CONTENT AND FORM SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND FORM IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE OR LOSS RESULTING FROM THOSE PROBLEMS.
- (f) NO HIGH RISK USE: FORM SERVICES, FORM CONTENT AND FORM SOFTWARE ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY FORM SERVICES, FORM CONTENT AND FORM SOFTWARE) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”), INCLUDING THE OPERATION OF NUCLEAR OR CHEMICAL FACILITIES, AIRCRAFT OR OTHER MODES OF HUMAN MASS TRANSPORTATION, AUTOMOTIVE OR AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE-SUPPORT OR WEAPONS SYSTEMS OR MACHINES, OR MEDICAL DEVICES. HIGH RISK USE OF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE IS STRICTLY PROHIBITED.
- (g) RELEASE OF CLAIMS: YOU WILL NOT MAKE ANY CLAIM AGAINST ANY OF THE FORM GROUP ARISING FROM. CONNECTED WITH OR RELATING TO ANY OF THE FOLLOWING: (I) YOUR DOWNLOADING OR USE OF ANY THIRD PARTY SOFTWARE OBTAINED THROUGH FORM SERVICES; (II) YOUR USE OF LINKED SERVICES OR YOUR DEALINGS WITH THE OWNERS OR OPERATORS OF LINKED SERVICES; (III) YOUR INTERACTIONS WITH OTHER USERS OF FORM SERVICES OR YOUR USE OF USER CONTENT; AND (IV) THIRD PARTY SERVICE CONTENT OR YOUR INTERACTIONS WITH PROVIDERS OF THIRD PARTY SERVICE CONTENT.
- (h) LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY DEVICE/SOFTWARE AGREEMENTS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FORM GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PERSONAL INJURY, EMOTIONAL DISTRESS, OR ANY DAMAGE OR LOSS OF ANY NATURE OR KIND (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE, LOSS OF PRIVACY, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) OR LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO FORM SERVICES, FORM CONTENT OR FORM SOFTWARE (INCLUDING YOUR USE OR INABILITY TO USE FORM SERVICES, FORM CONTENT OR FORM SOFTWARE) OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION OF THIS AGREEMENT FORM GROUP IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FORM GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO FORM SERVICES, FORM CONTENT OR FORM SOFTWARE OR ANY RELATED MATTER EVER EXCEED THE AMOUNT OF CDN$50. THIS SECTION 23(h) APPLIES TO LOSS, DAMAGE AND LIABILITY HOWEVER CAUSED AND TO LIABILITY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, STATUTE AND STRICT LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY FORM OR ANY PERSON FOR WHOM FORM IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE YOU OR ANY OTHER PERSON FOR THE LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR FORM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED.
- (i) EXCEPTIONS: THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT MIGHT NOT APPLY TO YOU.
- (j) WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS: WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO FORM SERVICES AND/OR THIS AGREEMENT, TO THE EXTENT NOT PROHIBITED OR LIMITED BY THE LAWS IN YOUR JURISDICTION: (A) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (B) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
- (k) INDEMNITY: YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS FORM GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING LEGAL FEES), CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, OBLIGATIONS AND LIABILITIES (INCLUDING LEGAL FEES AND EXPENSES AND SETTLEMENT PAYMENTS) ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE OR YOUR NEGLIGENCE, MISCONDUCT OR BREACH OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, FORM GROUP RETAINS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY THIRD PARTY CLAIM, COMPLAINT, DEMAND, ACTION, SUIT OR PROCEEDING WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE.
- 24. Suspension/Termination:
- (a) Suspension: FORM in its discretion may at any time immediately suspend or restrict your Account and your permission to access and use FORM Services and FORM Content without notice or liability to you or any other person. Your permission to use FORM Services will be indefinitely suspended, immediately, automatically and without notice or liability to you or any other person, if you breach or otherwise fail to comply with this Agreement.
- (b) Cancellation and Termination: This Agreement is effective unless and until terminated. You may cancel and deactivate your Account at any time by contacting FORM using one of the methods available at support.formswim.com. Upon FORM processing such cancellation and deactivation, this Agreement shall immediately terminate. FORM is under no obligation to store Your Content and may delete your Account and Your Content immediately upon cancellation or may keep your Account and your Content for as long as permitted by applicable laws. FORM may terminate this Agreement at any time either by either giving a notice of termination to you, cancelling and deactivating your Account or otherwise denying you access to FORM Services.
- (c) Consequences of Termination: Upon termination of this Agreement, you will immediately cease using FORM Services and FORM Content. Notwithstanding any other provision of this Agreement, the obligations and liabilities you incur prior to termination of this Agreement will survive termination, and Sections 11 through 18, 20 through 23, 24(c) and 25, and all other provisions of this Agreement necessary to their interpretation or enforcement, will survive termination and continue to apply and be binding upon you and FORM.
- 25. General Matters
- (a) Governing Law: This Agreement, the relationship between you and FORM and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- (b) Disputes: Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Any award rendered in an arbitration is final and binding and judgment on the award may be entered in any court having jurisdiction for its enforcement. Notwithstanding the foregoing, FORM may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by FORM through injunctive relief and other equitable remedies without proof of monetary damages.
- (c) Notices: FORM may deliver notices under this Agreement to you by email to any email address that you provide to FORM (including when you subscribe for your Account). You are solely responsible for ensuring that your email addresses on file with FORM are and remain current and correct throughout the term of this Agreement, and you will promptly give notice to FORM of any change to your email addresses. You will give all notices under this Agreement to FORM in writing using one of the methods available at support.formswim.com.
- (d) Force Majeure: Notwithstanding any other provision of this Agreement, FORM will not be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond FORM’s control. Any delay or failure of that kind will not be a breach of this Agreement by FORM, and the time for FORM’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
- (e) Miscellaneous: You and FORM are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between you and FORM. Upon request by FORM, you will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of this Agreement. No consent or waiver by FORM to or of any breach of this Agreement by you will be effective unless in writing and signed by FORM or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. FORM’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which FORM may be lawfully entitled under this Agreement or at law, and FORM will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in their essential purpose. You may not assign this Agreement or any of your rights or obligations under this Agreement. FORM in its discretion may assign this Agreement and any or all of FORM’s rights and obligations under this Agreement. FORM may FORM subcontractors to perform FORM’s obligations under this Agreement. The provisions of this Agreement will enure to the benefit of and be binding upon you and FORM and your respective successors, permitted assigns and personal representatives.
- (f) Interpretation: In this Agreement: (i) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (ii) words importing the singular number only include the plural and vice versa; (iii) words importing a gender include both genders; (iv) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (v) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vi) “law” includes common law, equity, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (vii) “discretion” or any variation thereof means the relevant party’s sole, absolute and unfettered discretion.
- (g) Complete Agreement/Governing Language: This Agreement set forth the entire agreement between you and FORM regarding the subject matter of this Agreement, and supersede all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may not be modified, except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by FORM. You and FORM have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais. Subject to applicable law, any non-English translation of this Agreement provided by FORM is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of this Agreement will take priority and govern.
If you have any questions or comments regarding this Agreement, you may contact FORM using one of the methods available at support.formswim.com or
by mail at:
200 - 1090 Homer Street,
V6B 2W9, Canada.