2. Mobile Version
User may use the mobile version of the Site in connection with User’s use of the Site. Any such use is subject to the terms and conditions of this Agreement.
All right, title and interest in any content (including, but not limited to, all intellectual property rights therein) submitted to SwamCam, the Site or the App by User or available on, or made available through, the Site (collectively “Content”) belongs to, or is licensed by, SwamCam. User may access and use any Content solely in connection with User’s authorized use of the Site or App, and for no other purpose. However, SwamCam may, in its sole discretion, prohibit use of any Content for prohibited purposes upon sending notice of such prohibited use. Users may not use any Content for any purpose prohibited by this Agreement, or any applicable law.
5. Account Creation and Access
To use certain SwamCam Services, User must register or sign up for an account and provide certain, individualized information. In doing so, User becomes a SwamCam account holder (“Account Holder”). Account Holder represents and warrants that: (i) all required registration and account information submitted is truthful, current and accurate; (ii) Account Holder will maintain the accuracy of such information; (iii) Account Holder will not violate any United States or other applicable law or regulation in connection with the use of the Services.
Account Holder also agrees to maintain the security of the account and promptly notify SwamCam if it is discovered or suspected that someone has accessed Account Holder’s account without permission. If Account Holder permits others to use the account credentials, Account Holder is responsible for the activities of such Users that take place in connection with that account. SwamCam may suspend or terminate Account Holder’s account and/or access to the Services at any time upon becoming aware of any violation or threatened violation of the Agreement, any security or other threat to our systems, technology, business, other people, or other matters warranting such suspension or termination. SwamCam is not responsible for any loss or harm related to User’s inability to access or use our Services.
6. Software Updates
SwamCam may, in its sole discretion from time to time, provide updates, patches, fixes and other modifications to the Services, but has no obligation to do so. Any update will be subject to this Agreement. Updates may be automatically installed without providing any additional notice or obtaining any additional consent from User, and User hereby consents to these automatic updates. User may be required to install updates to use the SwamCam App or other components of the Services, and User may be required to promptly install any updates that SwamCam makes available.
7. Third-Party Vendors
SwamCam may rely on third parties to provide products, services and content in connection with the Services or this Agreement (individually a “Third-Party Vendor”), and SwamCam will have no responsibility or liability with respect to any Third-Party Vendor or any Third-Party Vendor’s products, services or content. A Third-Party Vendor may impose additional terms upon User’s use of such products, services and content, and User will be bound by such terms.
8. User’s Responsibilities
User is solely responsible and liable for (a) using commercially reasonable measures to protect any personal data collected through the Site or App from loss or unauthorized access, alteration, disclosure or use, (b) obtaining and maintaining all third-party equipment, software and services necessary to use the Site or App, (c) protecting access to, and security of, all equipment, software and services used to connect to the Site or App, (d) performing all of User’s obligations pursuant to this Agreement, (e) except as set forth herein, obtaining and maintaining appropriate licenses and rights for use of any third-party products, services or content in connection with using the Site or App, (f) paying all fees and other amounts in performing its responsibilities pursuant to this Agreement, (f) promptly reporting to SwamCam in writing any defect or error in, shortcoming of, and other problem with, the Site or App, (g) User’s compliance with all applicable law in connection with all matters for which User is responsible hereunder and User’s use of the Site or App, and (h) obtaining from any third party any required approval, authorization, consent, license, permission and permit to use the Site or App as contemplated herein.
9. Security Breach
User shall immediately notify SwamCam in writing of any loss or unauthorized access, alteration, disclosure or use of any personal information collected through the Site. In responding to any such breach, User shall comply with all applicable laws and render all assistance requested by SwamCam so that SwamCam can comply with all laws applicable to SwamCam, if any, or take any other appropriate remedial measures as a result of such breach.
10. Third-Party Websites
The Site or App may contain links to, or may be accessible through links on, websites or equipment that are not maintained by SwamCam. SwamCam is not responsible for any content contained on, or otherwise with respect to, such other websites or equipment. No link from the Site or App to another website or equipment, or from another website or equipment to the Site or App, is an endorsement, sponsorship or recommendation by SwamCam of such other website or equipment and links are provided only for User’s convenience. SwamCam will have no responsibility or liability to User arising from any link between the Site or App and a third-party website or equipment.
11. Limited Express Warranty
SwamCam’s Services are made available to User “as is” and without any warranty or representation of any kind, whether express or implied. Without limiting the generality of the immediately preceding sentence, SwamCam disclaims all implied warranties (including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose).
SwamCam warrants that its Devices will be free from defects in materials and workmanship for a period of one year from the date of purchase. If the product or any component is defective or malfunctions during this period, SwamCam will repair or replace the products, at its sole discretion, free of charge. This limited warranty does not apply to the following events or occurrences: damage due to abuse, misuse, modification, alteration, failure to follow instructions and specifications, negligence, casualty, and acts of God. This limited warranty does not apply to consumable parts (e.g., batteries) and does not include reimbursement for inconvenience, installation, loss of use, or unauthorized service.
12. DISCLAIMER OF ALL OTHER WARRANTIES
WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTY, SWAMCAM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH ITS SERVICES, INCLUDING ITS DEVICES. IF APPLICABLE LAW DOES NOT ALLOW FOR THE DISCLAIMER OF STATUTORY OR IMPLIED WARRANTIES, THEN TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH STATUTORY AND IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE PERIOD OF ONE YEAR FROM THE DATE OF PURCHASE OF THE ALARM PRODUCT(S).
13. Limitation of Liability and Liquidated Damages
SwamCam’s Services are not a life-saving system and are not intended to be solely relied upon by User for supervising an area of safety concern. The Services are meant to supplement active, human supervision of minors, those who cannot swim or those who may be at risk for accidental injury or death. The Services are subject to technology shortfalls including, but not limited to, interruptions in electrical power or WiFi signal and/or network overload. User must always ensure minors are properly supervised by an adult. For more information on pool safety, please see www.poolsafely.gov.
User understands the above and agrees that SwamCam’s Services are designed to reduce the risk of loss only as detection/notification products. These Services, including the Devices, do not avert, eliminate, or minimize occurrences or events, such as personal injury, death, or property damage, and the User is not purchasing the alarm products in reliance on them to avert, eliminate, or minimize such occurrences or events. SwamCam makes no guarantee or warranty, beyond the foregoing Express Limited Warranty, that the Services, including the Devices, will detect or avert such occurrences or their consequences. Accordingly, SWAMCAM HAS NO LIABILITY FOR ANY LOSSES IN CONNECTION WITH ITS SERVICES, INCLUDING THE DEVICES, NO MATTER THE CAUSE, EVEN IF DUE TO SWAMCAM’S OWN NEGLIGENCE OR THE SERVICES, INCLUDING THE DEVICES’S, MALFUNCTION OR NONFUNCTION.
IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM SWAMCAM’S FAILURE TO PERFORM ITS OBLIGATIONS. IN NO EVENT WILL THE CUSTOMER HOLD SWAMCAM LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. NOTWITHSTANDING THE PROVISIONS HEREIN, IF SWAMCAM IS FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING TO ITS SERVICES, INCLUDING THE DEVICES, THEN SWAMCAM’S LIABILITY SHALL NOT EXCEED THE GREATER OF THE AMOUNT THE CUSTOMER PAID FOR THE ALARM PRODUCTS AND SERVICES OR $500.00. THIS AGREED-UPON AMOUNT IS NOT A PENALTY, BUT THE CUSTOMER’S SOLE REMEDY.
14. SwamCam is Not an Insurer
It is understood and agreed that SwamCam is not an insurer, and that insurance coverage, if any, shall be obtained by User to protect against the risk of loss. It is further understood and agreed that the amounts payable to SwamCam hereunder are based upon the value of the Services, not the value of User’s property. User agrees to look exclusively to User’s insurer to recover for injuries or wrongful death, or property loss, and releases and waives all right of recovery against SwamCam by way of subrogation or otherwise.
User shall indemnify, defend and hold harmless SwamCam from all costs, damages, expenses, fines, liabilities, losses, penalties and payments (including, but not limited to, fees and disbursements of counsel to SwamCam) resulting from, or relating to, (a) User’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of SwamCam’s Services by User, (d) any products, services or content of Third-Party Vendors, or (d) except to the extent SwamCam is grossly negligent or engages in intentional misconduct, any action taken, or not taken, by User or any third party in reliance on the Services.
GIVEN THAT USER RETAINS THE SOLE RESPONSIBILITY FOR THE LIFE AND SAFETY OF ALL PERSONS ON ITS PREMISES, AND FOR PROTECTING AGAINST LOSSES TO HIS/HER OWN PROPERTY OR THE PROPERTY OF OTHERS ON ITS PREMISES, USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS, SWAMCAM, ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES FROM AND AGAINST ALL CLAIMS, LAWSUITS, AND LOSSES BY THIRD PARTIES, ALLEGED TO BE CAUSED, IN WHOLE OR IN PART, BY THE IMPROPER OPERATION OF THE ALARM PRODUCTS AND SERVICES, WHETHER DUE TO THEIR MALFUNCTION OR NONFUNCTION, OR THE NEGLIGENCE OR NONPERFORMANCE OF SWAMCAM.
WITH RESPECT TO SWAMCAM’S SERVICES, INCLUDING ITS DEVICES, USER EXPRESSLY WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON HIM/HER UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AND ANY RIGHTS NOW OR HEREAFTER CONFERRED UPON A CUSTOMER BY STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY SWAMCAM’S RIGHTS AS DESCRIBED HEREIN.
16. Time to Bring Claim or Suit
No claim or lawsuit shall be brought against SwamCam more than one year after the accrual of the cause of action arises.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
SwamCam may revise any provision of this Agreement from time to time by (a) posting the revised provision so that it is accessible to User on the Site or App, (b) posting the revised provision so that it is accessible to User on the Site, or (c) notifying User of the revised provision in an email message or other notice sent to User at the address for User in SwamCam’s records. Any such revision will be effective immediately upon the earlier of such posting, sending such email message or five days after such notice is placed in regular mail, with postage prepaid, as set forth in this Section. User is responsible for periodically checking this Agreement on the Site or App for revisions to this Agreement. Any other revision to this Agreement must be in a writing signed by SwamCam and User.
User must send notices to SwamCam relating to the Services or this Agreement using one of the methods set forth below:
Regular mail to:
400 Rella Blvd, Suite 123-115
Montebello, New York 10901;
E-mail to: [email protected]
Any such notice will be effective upon actual receipt by SwamCam. SwamCam may send notices to User relating to the Services or this Agreement through e-mail, regular mail or a general posting on the Site. Any such notice from SwamCam will be effective (a) immediately upon SwamCam’s sending such notice to the address it has in its records for User in the case of e-mail, (b) five days after SwamCam’s sending such notice to the address it has in its records for User, with postage prepaid, in the case of regular mail, and (c) immediately upon User’s entering the Site after such notice is posted on the Site.
No failure of SwamCam to exercise, and no delay by SwamCam in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by the party granting such waiver, and specifically referring to each such right or remedy being waived.
22. Equitable Remedies
User acknowledges that a remedy at law will be inadequate if User violates any provision of this Agreement, and if SwamCam reasonably believes User has violated any such provision, User consents to SwamCam’s obtaining from a court having jurisdiction an injunction, a restraining order, specific performance or other equitable remedy against User, without any requirement for a bond or other security. The right of SwamCam to obtain any such equitable remedy shall be in addition to, and not in lieu of, each other right or remedy available to SwamCam under this Agreement or any applicable law.
23. Force Majeure
SwamCam shall not be liable or responsible to the other party for damages incurred by User for any delay or failure in performing an obligation pursuant to this Agreement to the extent such failure is caused by (a) death or illness, (b) flood, rain, snow or other weather conditions, (c) governmental action, including closings and shutdowns (d) slowdowns, strike or other labor disturbances, (e) riot, (f) terrorism, (g) unavailability of utilities or other essential items, (h) war, whether or not war is actually declared, or (i) other events or occurrences beyond the reasonable control of SwamCam, so long as SwamCam promptly notifies User of, and uses commercially reasonable efforts to overcome as soon as reasonably practicable, such events or occurrences.
24. Third-Party Beneficiaries
There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
User represents and warrants to SwamCam that User (1) has carefully read this Agreement, (2) is entering into this Agreement on User’s own behalf, and (3) has sufficient capacity to enter into this Agreement and bind User.
Dated: December 15, 2020