Last Updated: April 21, 2021
Welcome to www.swimusapools.com (the “Website”), owned and operated by American Fiberglass Containers and Components, LLC, a New Jersey limited liability company, dba SwimUSA, and its brands and subsidiaries (“SwimUSA”). Except as otherwise noted herein, these terms and conditions, INCLUDING THE BINDING ARBITRATION PROVISION CONTAINED IN SECTION 12 (the “Terms”) govern your use of the Website and SwimUSA’s services, applications, content and products (collectively, the “Site”). Please read these Terms carefully because your use of the Site constitutes your agreement to follow and be bound by these Terms. If you do not agree to these Terms, you should not access or use the Site. SwimUSA reserves the right to make changes to the Site and to these Terms from time to time. When we make changes, we will post them here. For this reason, we encourage you to review these Terms whenever you use our Site because by visiting the Site, you agree to accept any such changes. SwimUSA provides you with access to and use of the Site subject to your compliance with these Terms. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except as specifically permitted on the Site. The Site, including all of its information and content, such as text, data, wallpaper, icons, characters, artwork, images, photographs, graphics, music, sound, messages, software and the HTML used to generate the pages (collectively, “Materials and Content”), is SwimUSA’s property or that of our suppliers or licensors and is protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided on the Site or in these Terms, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit or distribute any Materials and Content from this Site in whole or in part, for any public or commercial purpose without the specific prior written permission of SwimUSA. We grant you a personal, limited, nonexclusive, nontransferable license to access the Site and to use the information and services contained therein solely for your personal, noncommercial use as described below. We reserve the right, for any reason or for no reason, in our sole discretion and without notice to you, to revise the products and services described on the Site and to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, the Materials and Content on the Site as well as features and/or hours of availability of the Site, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
- Prohibited Uses. The Site may be used only for lawful purposes and is available only for your personal, noncommercial use, which shall be limited to viewing the Site, purchasing products, providing information to the Site and downloading product information for your personal review. You are responsible for your own communications, including the transmission, posting and uploading of information, and are responsible for the consequences of such communications to the Site. SwimUSA specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following: (i) posting any information that is incomplete, false, inaccurate or not your own; (ii) engaging in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation, or that would fail to comply with accepted Internet protocol; (iii) communicating, transmitting or posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the irrevocable permission of the owner to post it; (iv) communicating, transmitting or posting material that (a) reveals trade secrets, unless you own them or have the irrevocable permission of the owner, (b) infringes on any other intellectual property, privacy or publicity right of another, or (c) is in violation of applicable laws or regulations; (v) communicating, transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of any applicable export control laws; or (vi) attempting to interfere in any way with the Site’s or SwimUSA’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.
- Security Rules. Violations of system or network security may result in civil or criminal liability. SwimUSA investigates violations and may involve, and cooperate with, law enforcement authorities in prosecuting any user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following: (i) accessing data not intended for you or logging on to a SwimUSA server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt); (iii) attempting to interfere or interfering with the operation of our Site, our provision of services to any other visitors to our Site and our hosting provider or our network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “email bombing” or “crashing” the Site; and (iv) forging any TCP/IP packet header or any part of the header information in any email or transmission or posting to our Site.
- Services and Pricing Information. Although SwimUSA has made every effort to display our services and products and the features, specifications and colors thereof as accurately as possible, the displayed colors of any products depend upon the monitor of the user, and SwimUSA cannot guarantee that the user’s monitor will accurately portray the actual colors of the products. Services and products displayed may be unavailable, out of stock or discontinued, and prices are subject to change. SwimUSA is not responsible for typographical errors regarding price or any other matter.
- Proprietary Rights. As between you and SwimUSA, SwimUSA is the owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on the Site, and is the copyright owner or licensee of the Materials and Content on the Site, unless otherwise indicated. The SwimUSA logos, designs, titles, phrases and product names and the copyrights, trademarks, service marks, trade dress and/or other intellectual property in such materials (collectively, the “Intellectual Property”) are owned by SwimUSA and may be registered in the United States and internationally. You agree not to display or use the Intellectual Property in any manner without SwimUSA’s prior written permission. Nothing on the Site should be construed to grant any license or right to use any of the Intellectual Property without the prior written consent of SwimUSA. Except as otherwise provided herein, use of the Site does not grant you a license to any Materials and Content or features you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Materials and Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Materials and Content or screens for any purpose except as otherwise provided by SwimUSA. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. The information on the Site, including, without limitation, all site design, text, graphics, interfaces and the selection and arrangements of such is protected by law, including, but not limited to, copyright law.
- Social Media Agreement.
- We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you: (i) submit or post on the Site, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Tumblr and Pinterest, that are tagged with #SwimUSA or any other SwimUSA promoted hashtag (collectively “User Content”) shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to SwimUSA a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness (and the likeness of any other person appearing therein, including, without limitation, any minor child) included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including, but not limited to, in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to: (a) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms; or (b) inspect or approve the editorial copy or other material that may be used in connection with the User Content. SwimUSA will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. SwimUSA shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. SwimUSA retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
- By submitting or posting User Content on the Site, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that: (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you hereby give permission on behalf of any minor children that appear in the User Content, to which you are the legal guardian, to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iv) you are 18 years of age or older; and (v) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by SwimUSA, you will furnish SwimUSA any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold SwimUSA and its members, manager, employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
- SwimUSA does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge SwimUSA and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity; or (ii) the use by SwimUSA or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that SwimUSA has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. SwimUSA acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If SwimUSA becomes aware of any User Content that allegedly may not conform to these Terms, SwimUSA may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. SwimUSA has no liability or responsibility to Users for performance or nonperformance of such activities.
- Without limiting the foregoing in any way, SwimUSA has the absolute right to remove and/or delete without notice any User Content within its control in its sole discretion. You consent to such removal and/or deletion and waive any claim against SwimUSA for such removal and/or deletion. SwimUSA is not responsible for failure to store posted content or other materials you transmit through the Site. You should take measures to preserve copies of any data, material, content or information you post to the Site or any other sites or platforms.
- Copyright Complaints. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide SwimUSA’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. §512 (“DMCA”). Please be advised that to be effective, the notice must include ALL of the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party; (v) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or as a matter of law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices of claimed copyright infringement and counter-notices should be delivered via email to firstname.lastname@example.org with the subject line “DMCA Notice” or by mail addressed to SwimUSA, American Fiberglass Containers and Components, LLC, 1111 Reading Ave., Hammonton, NJ 08037. In accordance with the DMCA, it is our policy to terminate use of our Site by repeat infringers in appropriate circumstances.
- California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please either send an email to email@example.com. Residents of California may contact the California Department of Consumer Affairs Division of Consumer Services, Complaint Assistance Unit by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Disclaimers and Limitations of Liability.
- SwimUSA publishes information on its Site as a convenience to its visitors. While SwimUSA attempts to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the Site at any time without notice. The products described on the Site may not be available in your region. SwimUSA does not claim that the information on the Site is appropriate to your jurisdiction or that the products described on its Site will be available for purchase in all jurisdictions.
- You assume all responsibility and risk with respect to your use of the Site, which is provided “AS IS.” SwimUSA DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND MATERIALS, FUNCTIONS AND SERVICES PROVIDED ON THE SITE, WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OR CONTENT OF INFORMATION, UNINTERRUPTED ACCESS AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SwimUSA DOES NOT WARRANT THAT THE SITE OR ITS FUNCTION OR THE CONTENT AND MATERIALS OR THE SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. SwimUSA MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THIS LIMITATION OF LIABILITY MAY NOT APPLY TO ALL USERS AND MAY BE LIMITED BY APPLICABLE LAW, AND CERTAIN USERS MAY HAVE ADDITIONAL RIGHTS NOT EXPRESSED HEREIN.
- SwimUSA makes no warranties of any kind regarding any sites not controlled by SwimUSA to which you may be directed or hyperlinked from this Site. Hyperlinks are included solely for your convenience, and SwimUSA makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such sites not controlled by SwimUSA. SwimUSA does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Site.
- IN NO EVENT SHALL SwimUSA, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE Members, Managers, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF THE SITE OR THE CONTENT AND MATERIALS OR FUNCTIONALITY ON OR ACCESSED THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF SwimUSA OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnity. You agree to indemnify and hold SwimUSA, its managers, members, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including actual outside attorneys’ fees and court costs, in any way arising from, related to or in connection with your use of the Site, your violation of these Terms or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third-party claim that any information, materials or User Content you provide infringes any third-party proprietary right. You further agree to reimburse SwimUSA, within thirty (30) days of each demand for reimbursement, for any and all costs, liabilities, expenses, fees, fines, professional fees and other amounts paid or incurred by SwimUSA (or such other indemnitee) in connection with the foregoing indemnity.
- Governing Law and Disputes. THE PARTIES AGREE THAT THeSE TERMS, ANY SALES THEREUNDER, AND/OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND SwimUSA arising from or relating to thESE Terms, its interpretation or the breach, termination or validity thereof, the relationships that result from thESE Terms, SwimUSA’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO CONFLICTS OF LAW.
- Dispute Resolution and Binding Arbitration. YOU AND SwimUSA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND PRIMARY ENDEAVORS, LLC, its members, managers, agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (collectively “SwimUSA”) arising from or relating in any way to your purchase of Product (as defined in the Terms of Sale), your use of the Site, these Terms, its interpretation or the breach, termination or validity thereof, the relationships that result from these Terms (including relationships with third parties who are not signatories to these Terms), SwimUSA’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or these Terms is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the customer’s individual dispute or controversy. You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR SwimUSA SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS/USERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be class arbitration). The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Payment for all filing, administration and arbitrator fees will be governed by the rules of the applicable arbitration administrator, provided, that SwimUSA will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If you prevail on any claim that affords the prevailing party statutory attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: (i) American Arbitration Association: (800) 778-7879, adr.org; and (ii) JAMS: (800) 352-5267, www.jamsadr.com. If for any reason a claim proceeds in court rather than in arbitration each of you and SwimUSA waive any right to a jury trial. Moreover, each of you and SwimUSA both agree that either party may bring suit in court to enjoin infringement or misuse of intellectual property rights.