GG SwingTips Golf Terms and Conditions | https://ggswingtipsgolf.com | Updated September 21st, 2017
Acceptance of Terms and Conditions
Prohibited Uses and Your Conduct
Access to the Site and Availability of Online Services
Wireless and Location-Based Features; Social Media Plug-ins
User Generated Content and Release
Children’s Online Privacy Protection Act (“COPPA”)
Disclaimer of Warranties
Limitation of Liability and Waiver
Local Laws and Export
Notice for California Users
Acceptance of Terms and Conditions
FishFit, LLC, its subsidiary and/or affiliated companies (collectively, “FishFit”, “we”, “our” or “us”) maintain this website and related websites (the “Site” or “Sites”), games, interactive TV and other services, products and related software and/or mobile and/or tablet applications (collectively, "online services" or "services"). Welcome to our services! Thank you for visiting and learning more about us.
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY, THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF, AND WAIVER OF YOUR RIGHT TO A JURY TRIAL. BY VIEWING, INTERACTING WITH, DOWNLOADING, INSTALLING OR USING IN ANY WAY ANY ONLINE SERVICES, YOU ACKNOWLEDGE AND AGREE YOU ARE BOUND BY THESE TERMS. CONTINUED USE OF THE ONLINE SERVICES SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY CHANGES TO THEM.
EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE ONLINE SERVICES YOU ARE ENTERING INTO A NEW BINDING AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE APPLICABLE ONLINE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the online services (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post such Additional Terms, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the online services will continue to apply to such prior use (i.e., changes and additions are prospective only) except as mutually agreed. In the event any notice to you of new, revised or Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, your message account (if applicable) and the e-mail you associated with your account (if applicable) for notices, all of which you agree are reasonable means of providing you notice. You can reject any new, revised or additional Terms by discontinuing use of all online services.
Please note that FishFit may modify, revise and/or reissue these Terms prospectively, in its sole discretion, by posting updated terms on the Site. You consent and agree to receive notices of updates of these Terms through our posting of updated Terms on the Site. You should visit this page regularly to review the current terms. Your continued use or accessing of the online services following the posting of any changes to these Terms will be deemed and constitutes your irrevocable acceptance of such changes or revisions.
To access this Site or some of the resources it has to offer, you may be asked to provide registration details. It is a condition of use of these online services that all the details you provide be correct, current, and complete. If we at FishFit believe the details are not correct, current, or complete, we have the right to refuse you access to the online services, or any of its resources, and to terminate or suspend your account.
Your use of the online services shall be limited solely to your personal and non-commercial use. The online services contain text, pictures, music, barcodes, video, data, hyperlinks, displays, and other material that is supplied and owned by FishFit ("Content"). As between FishFit and you, FishFit owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the online services and Content. You acknowledge FishFit’s valid intellectual and proprietary property rights in the online services and Content and that your use of the online services is limited to the access and viewing of Content, all solely as authorized by FishFit. Nothing in these Terms shall be deemed to convey to you any right, title or interest in or to the online services or Content or to any portion thereof except for the limited rights expressly granted herein.
Links By You To the Online Services. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the online services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with or endorsement by FishFit or cause any other confusion regarding your relationship to FishFit or its affiliates or to the online services, (c) the link must open in a new browser window and link to the full version of applicable online services web page; and (d) the links and the content on your website do not portray FishFit or its affiliates or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to FishFit. FishFit reserves the right to suspend or prohibit linking to the online services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
Prohibited Uses and Your Conduct
You may use the online services solely for personal and non-commercial uses. You may not either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone or other device (each a "device") or other means remove, alter, bypass, avoid, interfere with, or circumvent (i) any copyright, trademark, or other proprietary notices marked on the online services or Content, (ii) any digital rights management mechanism, device, or other content protection or access control measure associated with the online services or Content, or (iii) any advertisement on the online services and/or within Content. You may not either directly or through the use of any device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the online services or Content unless expressly permitted by FishFit in writing. You may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make the online services or any Content available via frames or in-line links, and you may not otherwise surround or obfuscate the Content or online services with any third party content, materials or branding. You may also not use any software robots, spider, crawlers, or other data gathering or extraction tools, whether automated or manual, to access, acquire, copy, monitor, scrape or aggregate Content or any portion of the online services. See Section 2(a) for terms applicable to use of links to the online services. You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on the online services or its servers and infrastructures. You may not build a business, in whole or in part, resell, redistribute or recirculate or make any other commercial use of, or create derivative works or materials utilizing any portion of the online services or Content, whether or not for profit.
To the extent that FishFit makes Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another site, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism, device, or other content protection or access control measure associated with Content, or any advertisement delivered with Content.
You are also prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to allow users to view Content without: (i) displaying visibly both Content and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks); and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.
Acceptable Use. Use of the online services is limited to the contemplated functionality. The following rules are a condition of your use of and access to the online services (collectively “Acceptable Use”). You are responsible for the content of your communications (including User Content as defined in Section 10) via the online services.
1. The online services or Content shall not be used in any way that:
a. harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
b. is unlawful, fraudulent, or deceptive;
c. uses technology or other means to access unauthorized content or non-public spaces;
d. uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public spaces;
e. attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
f. attempts to damage, disable, overburden, or impair FishFit servers or networks;
g. attempts to gain unauthorized access to a FishFit computer network;
h. attempts to gain unauthorized access to FishFit user accounts;
i. encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
j. violates these Terms in any manner; or
k. fails to comply with applicable third-party terms and conditions or other third-party policies.
2. You may not interfere with any other use from using or enjoying the online services.
3. You may not upload, post, transmit or otherwise distribute or facilitate the distribution of content that is fraudulent or infringes the rights of any third party, including without limitation, patent, trademark, copyright, right of publicity or other proprietary rights.
4. You may not upload, post or otherwise distribute or facilitate the distribution of any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, indecent or otherwise inappropriate information of any kind, including without limitation, any images or other material of a sexual nature.
5. You may not attempt to gain unauthorized access to other computer systems or networks connected to the online services or use the online services, Content or any information contained therein for any unlawful purpose. FishFit, in its sole and absolute discretion, shall determine whether any content you transmit or receive or your use of the online services violates this provision.
7. You may not impersonate or falsely state or otherwise misrepresent your professional or other affiliation with FishFit or with any other person or entity.
8. You may not use the online services, Content or any information contained therein for any unlawful purpose, and you may not encourage conduct that would constitute a criminal offense or give rise to civil liability. You may not use any services in connection with any site or other use that contains or is associated with information or content prohibited by these Terms.
9. You may not take any action on the online services that violates any applicable law or these Terms.
FishFit may require, at any time, proof that you are following these rules. FishFit reserves the right, in its sole discretion, to terminate your use, remove Content, assist law enforcement in the prosecution of criminal liability, assert a civil or criminal legal action or seek other legal or equitable remedies with respect to Content or use of the online services, that FishFit reasonably believes is or might be in violation of these Terms; provided that failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
Please act responsibly when using this Site and online services. You may only use this Site and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through the online services. You may not collect or store personal information regarding other users. You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if a third party claims that material you have contributed to the online services is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all materials publicly posted or privately transmitted on or through this Site or online services are the sole responsibility of the sender, not FishFit, and that you are responsible for all material you upload, publicly post or otherwise transmit to or through this Site or online services.
Access to the Site and Availability of Online Services
Only individuals over the age of thirteen (13) may use the online services. If you are between the ages of thirteen (13) and eighteen (18), you must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledges and agrees to these Terms. Should your parent or legal guardian not acknowledge and agree to these Terms, you must immediately discontinue all use of the online services.
This is a general audience Site for adults. We will assume (and by using this Site you warrant that) you have legal capacity to enter into the agreement set out in these Terms (i.e., that you are of sufficient age and mental capacity and are otherwise entitled to be legally bound in contract).
FishFit may change, suspend or discontinue any aspect of the online services at any time (and any elements and features of them), in whole or in part, for any reason, in our sole discretion, without notice or liability, including pursuant to Section 16 (Termination) below.
You and we agree that the Convention on Contracts for the International Sale of Goods does not apply to your use of our online services or these Terms.
You are responsible for any charges incurred in obtaining access to the online services. FishFit reserves the right to change the nature of this relationship at any time.
In order to access certain features of this Site or online services, or to conduct a transaction through one of our transactional channels, you may be required to register for an account ("Account"). If you register for an Account, you agree to: (a) provide true, accurate and complete information about yourself as prompted by the registration form; and (b) maintain and promptly update such information to keep it true, accurate, current and complete as permitted through the functionality of the Site. You acknowledge and agree that FishFit will have no liability associated with or arising from your failure to maintain accurate information about yourself, including, without limitation, your failure to receive important information and updates about the Site or online services. If FishFit has reasonable grounds to suspect that the information you provided on the registration form or otherwise is untrue, inaccurate or incomplete, FishFit may suspend or terminate your Account and refuse any and all current or future use of the Site or online services (or any portion thereof).
As part of the registration and account creation process necessary to obtain access to portions of the online services that require a fee or payment, you will have to create a user account with a password. You will provide FishFit with certain registration information, all of which must be accurate and updated. You shall not (i) select a subscriber ID (also referred to as a User ID) already used by another person; (ii) use a subscriber ID in which another person has rights without such person’s authorization; or (iii) use a subscriber ID or password that FishFit, in its sole discretion, deems offensive or inappropriate.
Any usernames and passwords used for this Site or online services are for individual use only. You are responsible for all use of your Account under any user name or password by any person or entity and for ensuring that your Account complies fully with the provisions of the Terms. You are solely responsible for maintaining the security and confidentiality of the password you use to access your Account. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your Account, in FishFit’s sole discretion, and FishFit may refer you to appropriate law enforcement agencies.
You agree to immediately notify FishFit of any unauthorized use of your password or Account or any other breach of security. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the online services and Site. FishFit has the right to provide user billing, account, content or use records and related information under certain circumstances (such as response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your Account so you should take reasonable steps to protect this information. You are responsible for all charges incurred up to the time the Account is terminated.
You are solely responsible for the confidentiality and security of User Information sent from or stored on ANY DEVICE OR TECHNOLOGY by the online services. This includes any and all unauthorized purchases made from the online services. You agree to immediately notify FishFit of any suspected unauthorized transactions associated with the online services or any other breach of security. FishFit shall not be responsible for any losses arising from the financial loss or theft of User Information due to unauthorized or fraudulent transactions related to the online services. You shall be solely responsible for taking precautionary steps to protect User Information stored on your computer or device.
You understand and agree that the Site and/or online services may include a social network and your activities (e.g., video viewing, interactions with members and/or advertisers) may be shared with others both on and off the online services. If you don’t want your activities on such social network to be shared, your only option is to deactivate the related social network account.
We do not warrant that product specifications, pricing, or other content on the online services is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, FishFit shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional Terms may apply. If a product you purchased from FishFit is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
The online services may provide opportunities for you to make purchases ("transactions"). Each transaction is governed by these Terms and any specific terms of the particular transaction (if applicable) which will be communicated to you during the check-out process. You agree that all transactions made by you on the online services cannot be exchanged and are non-refundable. All purchases are subject to the applicable service fees and charges, which are also non-refundable. You are responsible for paying all applicable taxes in connection with any and all transactions.
Subject to the provisions set forth in this Section 6, purchases of usage subscriptions (“subscriptions”) are nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use, even if such came with a durational term (e.g., a monthly subscription). Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your usage subscriptions, which remain our Content. We may also immediately suspended or terminate the rights we grant you to usage subscriptions for any or no reason, in our sole discretion, and without advance notice or liability. We may modify usage subscriptions at our sole discretion, and such modifications may make the usage subscriptions more or less common, valuable, effective, or functional.
We do not recognize the transfer of usage subscriptions (including for "real" money or any other consideration or items of value whether inside our outside of the online services). Accordingly, you may not purchase, sell, barter, or trade any usage subscriptions, or offer to purchase, sell, or trade any usage subscriptions. Any such attempted transfer will be null and void.
If we suspend or terminate any usage subscriptions, then you will forfeit the suspended or terminated subscription, except as may be set forth in any Additional Terms (such as any refund policies that may apply to a subscription service). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any usage subscriptions, or for loss or damage due to error, or any other reason.
When subscribing to any of FishFit’s subscription offerings available through the online services, all payments are made monthly and in advance. Upon initial registration for any such subscription, you will be required to enter into the applicable online service your credit card information. Upon the initial authorization, you thereby authorize FishFit to charge such credit card that same amount on a recurring monthly basis. All such fees are non-refundable, subject only to the following. The date of such initial authorization is deemed the start date of the initial term for that applicable monthly subscription (“Initial Term”). If you cancel such monthly subscription within thirty (30) days of the start date of the Initial Term, we will refund that first month’s subscription fee and cancel such subscription. Thereafter, any and all fees paid for such subscription are non-refundable.
To better protect your privacy, we provide a notice explaining our online information practices and the choices you can make about the way your information is collected and used at this Site and the online services. Click here to show this notice, which forms part of these Terms.
For your convenience, the online services may provide links to websites of other persons or entities ("Third-Party Websites"). HOWEVER, THE THIRD-PARTY WEBSITES ARE NOT CONTROLLED BY FISHFIT. ACCORDINGLY, FISHFIT MAKES NO WARRANTIES OR CONDITIONS REGARDING SUCH THIRD-PARTY WEBSITES, HAS NO RESPONSIBILITY FOR THE CONTENTS OF SUCH THIRD-PARTY WEBSITES, AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY WEBSITES. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK. THE INCLUSION ON THE ONLINE SERVICES OF A LINK TO A THIRD-PARTY WEBSITE DOES NOT IMPLY AN ENDORSEMENT BY FISHFIT. WHEN YOU ACCESS ANY OF THESE THIRD-PARTY SITES, PLEASE UNDERSTAND THAT IF YOU VISIT THIRD-PARTY WEBSITES THEN YOUR RIGHTS AND OBLIGATIONS WHILE ACCESSING AND USING THOSE SITES WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE SITES.
Wireless and Location-Based Features; Social Media Plug-ins
a. Wireless Features. The online services may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the online services’ features and upload content to the online services, receive messages from the online services, and download applications to your wireless device (collectively, "Wireless Features"). Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. In addition, your carrier may charge you for standard messaging, data, and other fees to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. We have no responsibility or liability for any fees or charges you incur when using Wireless Features. You should check with your carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your carrier with any other questions regarding these issues.
In addition, where any FishFit Application collects precise information about the location of your devices, it will be used to provide requested location services, and, depending on the particular Application it may be used, among other uses, to allow tagging or to check-in.
Some Application(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate device location tracking by us by uninstalling any Application(s) or feature(s). The location-based services offered in connection with our Application(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use.
(d) Social Media Plug-Ins. Social media plug-ins of social networks such as Facebook and Twitter (among others) are integrated on our online services. Where our online services contain a plug-in to a social network, these are clearly marked (e.g., with a Facebook button). If you chose to click on one of these buttons or links, your browser connects directly to the servers of the relevant social network. The social network directly transmits the content of the plugin to your browser. If you are registered on the relevant social network and logged into your respective account the social network receives the information that the web page was used by you. If you interact with a social network plug-in (e.g., you press the Facebook "Like" feature or the Twitter "Tweet this" feature) or drop a comment on the appropriate web page, the corresponding information is directly transmitted to the relevant social network from your browser. If you are not registered with the social network or you are logged out before you visit our online services, there is the possibility that at least your IP address will be submitted to and stored by the social network. If you interact with us through a social media platform, plug-in etc., then you may be permitting us to have on-going access to certain information from your social network profile (such as name, social networking id page, email address, photo, gender, location, the people/sites you follow etc.).
User Generated Content and Release
Reviews, responses, profile entries, posts or questions may not be able to be deleted once uploaded. For some of our features, other members may be able to request email notifications of your new public content or publish their own comments to your comments. We may use the public content to develop aggregate ratings, personalize site views, market products or identify or feature popular members.
If you post or upload any content to the online services ("User Content"), you hereby acknowledge and agree that you are granting FishFit (including without limitation, its licensees, affiliates, successors and assigns) a worldwide, royalty-free, perpetual, irrevocable, sub-licensable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such User Content, and incorporate it in other works, in whole or in part, in any manner and any media now known or hereafter developed. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant to FishFit the foregoing license without infringing or violating the rights of any third party. Without in any way limiting the foregoing, you acknowledge and agree that FishFit, its licensees, affiliates, successors and assigns, shall have the right to sell, license, assign and otherwise transfer any and all of the rights granted by you to FishFit under these Terms, and to display any advertising, publicity, promotional materials and distribution rights in connection with User Content. You acknowledge and agree that FishFit, its licensees, affiliates, successors and assigns, will be entitled to retain any and all revenue generated from any sales, licenses, assignments and other transfers of the rights granted by you hereunder, as well as any and all revenue generated by the display of any advertising, publicity, promotional materials or distribution rights in connection with User Content. Nothing in these Terms obligates or may be deemed to obligate FishFit or any other person or entity to exercise any of the rights granted by you under these Terms. You will not receive any compensation of any kind for User Content or the use thereof, and you agree that there is no industry or other custom or practice that will vary these Terms. You agree that FishFit, its licensees, successors and/or assigns, shall have no obligation to give you credit for User Content, but in their sole discretion may elect to do so.
User Content will not be acknowledged or returned. You acknowledge and agree that User Content is being sent voluntarily by you, and not in confidence, and that no confidential relationship is intended or created between FishFit, and/or any other person or entity, on the one hand, and you, on the other hand, by your submission of the User Content. You also agree that FishFit does not intend and will not pay you for any User Content. You understand that no industry custom or practice changes your agreement that you will not be paid for any User Content.
By posting User Content on the online services, you consent to the recording, use and reuse by FishFit, its licensees, successors and assigns, of your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, including, without limitation, any information contained in the User Content, as used, edited, altered, fictionalized or modified by FishFit, in its sole discretion, in any and all media now known or hereafter devised, throughout the world, in perpetuity, including, without limitation, in and in connection with FishFit, or related Sites or online services, in and in connection with any television programs and other productions, and in connection with advertising, promotion and publicity.
Except as expressly set forth in these Terms, you shall continue to own all rights in and to the User Content. To the extent the User Content contains other materials or elements owned by FishFit or any other affiliated company, such as characters or other elements protected by copyright, trademark or other laws, your rights to make any other use of the User Content will continue to be governed by and may be limited by other applicable laws, the rights of third parties and FishFit.
While we may offer you the ability to post User Content anonymously, please be aware that your account information relating to the User Content is still stored by us. User Content does not reflect the views of FishFit. Notwithstanding anything else in these Terms, FishFit should not be seen as endorsing any User Content in any way. None of FishFit or its officers, directors, and employees, subsidiaries and/or affiliates shall be liable for any User Content. You acknowledge that you have no expectation of privacy with regard to any User Content.
User Content posted through the online services are provided by users like you who are unaffiliated with FishFit, and the user providing User Content is solely responsible for his/her own User Content. This means that you, and not FishFit, are entirely responsible and liable for any claims, loss or damages relating to all User Content that you upload, post, email or otherwise transmit via the online services. None of FishFit or its affiliates, or its or their officers, directors, and employees, subsidiaries and/or affiliates are responsible for User Content, accuracy or opinions expressed on the online services, nor shall they have any liability for any such User Content. FishFit does not investigate, monitor or check for accuracy or completeness of User Content. You understand that by using the Site or online services, you may be exposed to User Content that is offensive, indecent, or objectionable.
Your correspondence or business dealings with, or participation in promotions of, merchants found on or through the online services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. FishFit is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants on the online services.
Children’s Online Privacy Protection Act (“COPPA”)
FishFit and the online services are not designed or intended for use by children under the age of 13.
Disclaimer of Warranties
FishFit makes no warranties or representations as to the accuracy, timeliness, reliability, completeness or otherwise of the online services.
FISHFIT IS PROVIDING THE ONLINE SERVICES AND CONTENT TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE ONLINE SERVICES AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FISHFIT, ITS PARENT, ITS AFFILIATES, AGENTS AND LICENSORS (COLLECTIVELY, THE “FISHFIT PARTIES”) DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FISHFIT DOES NOT WARRANT THAT THE ONLINE SERVICES, OR YOUR ACCESS TO OR USE OF THE ONLINE SERVICES WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE; OR (5) COMPLY WITH LAWS. FISHFIT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ONLINE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ONLINE SERVICES OR THE SERVERS THAT MAKE THE ONLINE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FISHFIT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE ONLINE SERVICES OR ANY WEB SITES LINKED TO THE ONLINE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FISHFIT MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE ONLINE SERVICES OR ANY WEBSITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND FISHFIT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE ONLINE SERVICES OR ANY OTHER WEBSITE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Limitation of Liability and Waiver
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, NONE OF THE FISHFIT PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE ONLINE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF FISHFIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE FISHFIT PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE ONLINE SERVICES. WITHOUT LIMITING THE FOREGOING, FISHFIT WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH THESE TERMS; OR (2) CONTENT POSTED TO THE ONLINE SERVICES BY YOU OR ANY THIRD PARTY.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, FISHFIT PARTIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR WITH APPLICABLE JURISDICTION FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE.
In no event shall the FishFit Parties’ aggregate liability to you in connection with the online services exceed the amount, if any, paid by you for use of the online services in the six (6) months immediately preceding the event which gave rise to the liability, or $100, whichever is less.
You hereby waive, to the fullest extent that you may lawfully do so, any causes of action in law or equity you may have or may hereafter acquire against FishFit or any of its respective employees, agents, affiliates, successors and assigns, which such causes of action may include but are not limited to, injury, illness, libel, slander, invasion of privacy, intellectual property infringement, right of publicity, or false light arising out of or in connection with the online services.
It is your responsibility to obtain a physical examination from a doctor before participating in any exercise activity. You agree that by participating in physical exercise or training activities, you do so entirely at your own risk. Any recommendation for changes in diet including the use of food supplements, weight reduction and/or body building enhancement products are entirely your responsibility and you should consult a physician prior to undergoing any dietary or food supplement changes. You agree that you are voluntarily participating in any activities related to the online services and you assume all risks, including but not limited to injury, illness or death.
FishFit reserves the right to investigate suspected violations of these Terms, including without limitation any violation arising from any submission, posting or e-mails you make or send to any forum. FishFit may seek to gather information from the user who is suspected of violating these Terms, and from any other user. FishFit may suspend any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If FishFit believes, in its sole discretion, that a violation of these Terms has occurred, it may edit or modify any submission, posting or e-mails, remove the material permanently, cancel postings, warn users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate. FishFit will fully cooperate with any law enforcement authorities or court order requesting or directing FishFit to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate these Terms. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS ALL MEMBERS OF FISHFIT FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY MEMBER OF FISHFIT DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER A MEMBER OF FISHFIT OR LAW ENFORCEMENT AUTHORITIES.
You are solely responsible for any interaction with other members or visitors to the online services, and FishFit reserves the right, but shall have no obligation, to monitor disputes between you and any other member of FishFit.
You agree to defend, indemnify and hold harmless FishFit, its affiliates and their respective, employees, contractors, directors, officers and agents, from and against any and all claims, demands, actions, suits or proceedings, as well as any and all liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees and costs) arising out of, related to or accruing from: (i) the use or misuse of the online services and/or Content; (ii) violation of these Terms; (iii) violations of any rights of a third party, or any allegation thereof; (iv) your placement or transmission of any content onto FishFit’s servers, and/or from any and all use of your Account; (v) any material posted or otherwise provided by you (including without limitation User Content), or any other subscriber or user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy; (vi) any misrepresentation made by you in connection with your use of the online services; (vii) any breach of any of the representation, warranties or other terms or conditions relating to use of your User Content or the online services; or (viii) any breach or violation of any applicable laws, rules or regulations. FishFit reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
FishFit may, in its sole discretion, terminate your password, account (or any part thereof) or use of the online services, or remove and discard any User Content or information stored, sent, or received via the online services without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the online services, (ii) any unauthorized access or use of the online services, (iii) any violation of these Terms, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the online services. Termination, suspension, or cancellation of these Terms or your access rights to the online services shall not affect any right or relief to which FishFit may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to FishFit and its licensors and all rights granted by you to FishFit shall survive in perpetuity.
FishFit reserves the right to modify or discontinue, temporarily or permanently, all or any part of online services, this Site and/or any software, facilities and services on the online services or this Site, with or without notice, and/or to establish general guidelines and limitations on their use.
Subject to these Terms, you may terminate your Account, including any subscription, at any time by sending an e-mail to: [email protected]
FishFit, the FishFit logo, and other FishFit trademarks, service marks, graphics and logos used in connection with the online services are trademarks or registered trademarks of FishFit (collectively “FishFit Marks”). Other trademarks, service marks, graphics and/or logos used in connection with the online services are the trademarks of their respective owners (collectively “Third-Party Marks”). The FishFit Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of FishFit or the applicable trademark holder. The online services and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by FishFit or the owner of the Content.
FishFit reserves the right, but not the obligation, to terminate your license to use the online services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. FishFit accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, if you believe that any such third party materials infringe your intellectual property please send a written notice to the agent identified below to request a review of the alleged infringement:
By e-mail: [email protected]
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
• Your name, address, telephone number, and e-mail address;
• A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the online services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials;
• Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit FishFit to locate the material;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and
• A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
Local Laws and Export
FishFit makes no representation that the online services are appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the online services from other locations you do so on your own initiative and at your own risk.
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical and/or personal data exported from the United States or the country in which you reside.
Unless otherwise specified, the materials on the online services are presented solely to provide information regarding and to promote FishFit’s services and other products available in the U.S. The online services are controlled and operated by FishFit from its offices within the United States. FishFit makes no representation that materials on the online services are appropriate or available for use outside the U.S. Those who choose to access the online services from outside the U.S. do so on their own initiative and are responsible for compliance with local laws, if and to the extent that local laws are applicable. Software from the online services is further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported (A) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods, or (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the online service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
This Section 19 is deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and FishFit agree that we intend that this Section 19 satisfies the "writing" requirement of the Federal Arbitration Act. This Section 19 can only be amended by mutual agreement.
We believe that arbitration is a faster and more convenient way for you and us to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Site or other online services, (ii) any purchases or other transactions or relationships with FishFit, or (iii) any data or information you may provide to FishFit or that FishFit may gather in connection with such use, interaction or transaction (collectively, “FishFit Interactions”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Site or other online services, or engaging in any other FishFit Interactions with us, you agree to binding arbitration as provided below.
(a) The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and FishFit (the "Arbitrator");
(b) The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions in Section 19 hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;
(c) The Arbitration shall be held either: (i) at a location determined by JAMS pursuant to the Applicable Rules; or (ii) at such other location as may be mutually agreed upon by you and FishFit; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
(d) The Arbitrator (i) shall apply internal laws of the State of Arizona consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Arizona or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
(e) No Class Relief. The Arbitration can resolve only your and/or FishFit’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(f) The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(g) In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, FishFit will pay as much of your filing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith or you prevail in the Arbitration and recover an Award greater than the amount paid by FishFit for such filing fees;
(h) In the event you recover an Award greater than FishFit’s last written settlement offer, the Arbitrator shall also have the right to include in the Award FishFit’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but FishFit shall in all events bear its own attorneys’ fees; and
(i) With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor FishFit shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
(j) FishFit may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after FishFit has given notice of such modifications and only on a prospective basis for claims arising from FishFit Interactions occurring after the effective date of such notification.
(k) Notwithstanding the foregoing arbitration provisions, at either party’s option, either party may bring any claim it has against the other party in its local small claims court within the U.S., if such party’s claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210 Updated on Feb 28, 2011. You hereby acknowledge and agree that these Terms, along with the content available on the applicable online services satisfy the notice requirements of the California Civil Code Section 1789.3.
a. Applicable law. These Terms, any Additional Terms and the relationship between you and FishFit shall be governed by the laws of the U.S. and the State of Arizona without regard to its conflicts of law provisions.
b. Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in Maricopa, Arizona, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
c. No Waiver. No failure or delay by FishFit in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms.
d. Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
f. Paragraph and Section Titles are For Convenience. The paragraph or section titles in these Terms are for convenience only and have no legal or contractual effect.
g. This is the Entire Agreement. These Terms represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged.
h. Assignment. These Terms are binding upon and shall ensure to the benefit of parties and their respective successors and permitted assigns. You shall not assign your rights or obligations hereunder without FishFit’s prior written consent.
i. Connectivity. You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the online service and you will be responsible for all charges related to them.
j. Third Party Beneficiaries. You agree that FishFit’s service providers, licensors, or others involved in creating or providing the online services are third party beneficiaries to these Terms and may rely upon the provisions of these Terms, including but not limited to, the provisions concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver and Release.
If you have any questions, contact at support (at) ggswingtipsgolf (dot) com.