TERMS OF USE

 

Effective Date: November 1, 2021

swans-us.com (this "Site") is provided by Megabiz, Inc., (hereinafter, "SWANS USA" or "we" or "us" or "our"). Use of this Site is expressly subject to these Terms of Use and our Privacy Policy (as well as any additional terms and policies expressly referenced or incorporated herein or therein), all of which, together, form a legally binding contract between each user (hereinafter, "you") and SWANS USA. PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY CAREFULLY. If you do not agree with anything stated in these Terms of Use or our Privacy Policy, please do not use this Site.

IMPORTANT NOTE: THESE TERMS OF USE CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIC AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION. PLEASE SEE SECTION 7 (Disclaimer of Warranties; Limitations of Liability) AND SECTION 8 (Dispute Resolution by Binding Arbitration And Class Action Waiver; Choice of Law) OF THESE TERMS OF USE FOR DETAILS.
NOTICE TO CALIFORNIA RESIDENTS. To comply with California law, SWANS USA provides the following notice to users who are California residents:

  • Our legal name is Megabiz, Inc.

  • Our address is 2990 Canada Blvd., Glendale CA, 91208.

  • Our telephone number is 1-800-288-1949.

  • Our return policy and related information is available at: https://www.swans-us.com/return-policy.

  • For complaints, California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov.


1. CERTAIN DEFINITIONS. As used in these Terms of Use:

  • "Suppliers" means third-party manufacturers or brand owners who make their products available for purchase through SWANS USA.

  • "Supplier Materials" means Suppliers' trademarks, logos, product/model photos and images, product information, advertisements, links, and other materials that are provided by Suppliers for use or display on this Site.

  • "Site Content" means all content and information displayed or provided by SWANS USA on this Site, including text, trademarks, logos, graphics, designs, artworks, images, photos, videos and audios, and including also Supplier Materials; but excluding User Content (as defined below). As used herein, "Site Content" also includes the following: (i) the look and feel, page layout, and user interface designs of this Site; (ii) the programming code (including HTML code) of this Site, whether in human-readable or machine-readable form; and (iii) any software tool or application embedded in this Site. For the purposes of these Terms of Use, all Site Content will be deemed part of this Site.

  • "User Content" means anything originated by users, such as user-generated photos, images, videos, messages, ideas, suggestions, comments, reviews, testimonials, etc., but excluding the following: (i) users' account information and purchase information (including their billing and payment information); and (ii) anything that is copied or derived by users from SWANS USA-owned material. To the extent User Content contains users' names, voices, likenesses, photographs, biographical information, etc., all such identifying elements will be deemed part of User Content.


2. GENERAL PROVISIONS.

  1. 2.1 Eligibility. By using this Site, you represent and warrant that you have reached the age of majority in your state of resident and have full legal capacity to enter into a legally binding contract with SWANS USA.

  2. 2.2 Compliance with Applicable Laws. Use of this Site is subject to all applicable laws and regulations. You acknowledge and agree that it is solely and entirely your responsibility to comply with all laws and regulations applicable to your use of this Site. Use of this Site is prohibited if such use would be deemed illegal under applicable laws or regulations in the jurisdiction in which you reside.

  3. 2.3 International Use. This Site is hosted and operated within and from the U.S. SWANS USA does not represent or warrant that this Site will be appropriate or available for use in locations outside the U.S. If you access this Site from a location outside the U.S., you acknowledge and agree that you do so of your own volition and at your own risk and that you are solely and entirely responsible for complying with all applicable local laws and regulations.

  4. 2.4 Reservation of Rights. You acknowledge and agree that we reserve the right to: (i) cease (whether temporarily or permanently) providing this Site (in whole or in part) to you or to users generally, at any time and with or without reason, by giving 30 days advance notice of our intention to do so; and (ii) immediately terminate your access to this Site (including your account with SWANS USA), if we determine, in our sole judgment, that you are in violation of these Terms of Use or any applicable law or that your use of this Site may expose SWANS USA to liability of any kind, or may adversely affect the reputation or goodwill of SWANS USA.

  5. 2.5 Privacy. We respect our users' privacy. Please review our Privacy Policy which describes our data collection, use and sharing practices associated with this Site.

  6. 2.6 Ownership. This Site, including all Site Content, and all rights, title and interest therein and thereto (including, without limitation, all copyrights, moral rights, trademark rights, trade dress rights, trade secret rights, patent rights, and all other intellectual property or proprietary rights), are the property of SWANS USA and/or its Suppliers, and are protected by U.S. and foreign intellectual property and other laws. Other than a limited license to use as specified in Section 5.1 of these Terms of Use, you have no other right or license with respect to this Site or any Site Content. Any unauthorized use or exploitation of the property of SWANS USA and/or its Suppliers is strictly prohibited and may result in civil and/or criminal penalties. SWANS USA and its Suppliers reserve all rights not expressly granted herein. There are no implied rights or licenses granted to you under these Terms of Use.

    The SWANS USA name and logo are trademarks of SWANS USA. Suppliers' names and logos appearing on this Site are trademarks of their respective owners.

    As between you and SWANS USA, you retain ownership of your User Content; however, by submitting User Content to SWANS USA, you expressly give SWANS USA permission to use your User Content as described in Section 5.3 of these Terms of Use.

  7. 2.7 Electronic Communications. When you use this Site, you are communicating with us electronically, and you consent to receiving communications from us electronically, including emails, push messages, in-app messages, and messages posted to your account on this Site. You acknowledge and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that the same be in writing.

  8. 2.8 Mobile Service Charges. By using this Site on a mobile device (including downloading any Site Content onto a mobile device), you acknowledge and agree that standard carrier charges may apply and that depending on your wireless service plan, your wireless carrier may impose data and/or other charges when you use this Site, and that any and all such charges will solely be your responsibility.

  9. 2.9 Affiliate Program. SWANS USA offers an affiliate program that enables swim teams to create their own online stores on this Site and earn commissions from referred sales. Participation in such affiliate program is subject to and governed by SWANS USA's Affiliate Program Terms and Conditions at https://www.swans-us.com/affiliate-program.


3. ACCOUNT REGISTRATION. By registering an account on this Site, you represent and warrant that all account information you submit is your own information and is truthful and accurate. You acknowledge and agree that we may immediately suspend or terminate your account and your access to this Site if we have any reason to believe that you have misrepresented or provided false account information to us. It is your responsibility to notify us of any change in your account information, including your contact information. As the account holder, you are responsible for safeguarding your account login information, and you should notify us immediately in the event your account login has been stolen, lost, or used by another without your permission. If you allow others to use your account, you are responsible for all their activities on your account.

4. MAKING PURCHASES.

  1. 4.1 Representations and Warranties. A valid credit card that is accepted by us (Visa, MasterCard, American Express, etc.) or a valid third-party payment account that is accepted by us (PayPal, etc.), is required for making a purchase on this Site. By making a purchase on this Site, you represent and warrant that: (i) all billing and payment information you provide to SWANS USA is truthful and accurate; (ii) you are the holder (or an authorized user) of the credit card or PayPal account you use to pay for your order, and the account is active and has sufficient funds to cover the full transaction amount of your order (i.e., product price plus shipping/handling charges and applicable taxes); and (iii) you are purchasing products from SWANS USA for your own personal, family or household use or, if you are purchasing for a swim team, for your team's own use only, and not for commercial resale.

  2. 4.2 Reservation of Rights. All orders submitted on this Site are subject to acceptance in SWANS USA's sole discretion. SWANS USA reserves the right to refuse or cancel any order for any reason, including, without limitation: product unavailability; errors in product or pricing information; errors in billing or shipping information; and fraud prevention. In order to protect against fraud and unauthorized purchases, SWANS USA also reserves the right, prior to processing an order, to verify the account holder of the credit card or PayPal account used to place the order. SWANS USA will reject or cancel an order if the credit card or PayPal account used to place the order is declined for any reason.

  3. 4.3 Product Information. Product information and images displayed on this Site are for general informational purposes only, may contain errors, and are subject to change. SWANS USA makes no warranty (express or implied) that product information and images on this Site will be accurate in all respects. Also, depending on the screen quality and settings of your computer or mobile device, product color or finish you see on your computer or mobile device may differ from actual product color or finish, and SWANS USA makes no warranty (express or implied) that product color or finish you see on your computer or mobile device will accurately reflect actual product color or finish. If you have questions about a product you see on this Site, please contact our Customer Service by using the "Live Chat" feature provided on this Site, or by phone at 1-800-288-1949, or via email at info@swans-usa.com, 24/7 Monday-Sunday, (excluding public holidays).

  4. 4.4 Product Availability. SWANS USA does not guarantee the availability of any product displayed on this Site. SWANS USA reserves the right, without notice or liability to you, to change, discontinue or stop the offering of any product.

  5. 4.5 Prices. Prices advertised are subject to change without notice. The price charged for a product will be the price in effect at the time the order is placed and will be set out on the purchase receipt. Product prices do not include shipping/handling charges or applicable taxes. All prices and other charges are in U.S. Dollars, unless expressly otherwise stated. While SWANS USA makes reasonable efforts to display price information as accurately as possible, errors may occur. If SWANS USA discovers an error in the price of a product you have ordered, SWANS USA will notify you of the error as soon as possible and will give you the option of reconfirming your order at the correct price or cancelling your order. If SWANS USA is unable to get in contact with you within 24 hours, SWANS USA will treat your order as cancelled. If your order is canceled by SWANS USA due to a pricing error and you have already been charged for the product, you will receive a full refund. In no event will SWANS USA be obligated to sell you a product at the incorrect price.

  6. 4.6 Shipping. Shipping/handling charges depend on the shipping method you select at checkout, and will be added to your order total, and will be set out as a separate item in your shopping cart and on your purchase receipt.

  7. 4.7 Taxes. Depending on the shipping destination of your order, sales tax, value-added tax (VAT), customs duty, and/or other government-assessed charges (collectively "Taxes") may apply to your order. By making a purchase on this Site, you agree to be solely responsible for paying all Taxes applicable to your purchase. Where required by law, applicable Taxes will be added to your order total at checkout and will be set out as a separate item in your shopping cart and on your purchase receipt.

  8. 4.8 Ordering. To place an order on this Site, simply add the desired product item(s) to your shopping cart and proceed to check out to complete and submit your order. You can complete and submit your order either as a guest or by creating an account on this Site. By placing an order, you expressly authorize SWANS USA to charge (through its payment processing vendor) the full transaction amount of your order (i.e., product price plus shipping/handling charges and applicable taxes) to the credit card or PayPal account specified by you. Upon successful processing of your order, SWANS USA will send you via email a printable receipt detailing your purchase. Please save your purchase receipt and you will need it if you wish to check your order status or cancel your order.

  9. 4.9 Order Cancellation. Until such time an order is shipped (i.e., before it is picked up by the shipping carrier from SWANS USA's warehouse), you may cancel or modify it by contacting our Customer Service by phone at 1-800-288-1949 or via email at info@swans-usa.com 24/7 Monday- Sunday (excluding public holidays). Once an order has been shipped, it CANNOT be cancelled or modified. In such case, if you no longer want the product, you should wait for the package to arrive and then return the package in accordance with SWANS USA's return policy (see Section 4.10 below).

  10. 4.10 Returns. SWANS USA has a 60-day return policy on eligible items, provided that they are returned in new and unused condition and with original tags and packaging. Not all items purchased on this Site are eligible for return – for example, the following items are NON-RETURNABLE:

    • items marked as "FINAL SALE"

    • items that are custom-made

    • Grab Bag suites

    • Gift cards

    Other conditions and restrictions apply. For details, please view SWANS USA's return policy and related information at https://www.swans-us.com/return-policy.

  11. 4.11 Gift Cards. SWANS USA gift cards are available for purchase on this Site either as electronic cards (i.e., e-gift cards) or as physical cards. Unless expressly otherwise stated by SWANS USA, the following terms and conditions apply to SWANS USA gift cards:

    • All gift card sales are FINAL. Purchased gift cards are NON-RETURNABLE and NON-REFUNDABLE.

    • Gift cards are only redeemable for purchases from this Site, and are not redeemable for cash or credit (except that a gift card with a cash value of less than ten dollars ($10) is redeemable in cash for its cash value).

    • Gift cards are not re-loadable.

    • A gift card cannot be used to purchase another gift card.

    • Promo codes and discounts do not apply to the purchase of gift cards.

    • Gift cards do not expire as long as there is value remaining on the cards.

    • Please safeguard your gift card and do not share card number or PIN with others. SWANS USA cannot replace or replenish gift cards that are lost, stolen, or used without authorization.

    NOTE: SWANS USA will honor any state laws that may differ from the gift card terms set forth above in this Section 4.11. Check your own state laws for applicability.

  12. 4.12 Discounts/Promo Codes. SWANS USA may from time to time offer discounts/promo codes to eligible customers for use toward purchases on this Site. Unless expressly otherwise stated by SWANS USA, use of such discounts or promo codes is subject to the following terms and conditions:

    • Discounts/promo codes are valid for a limited time only. SWANS USA may modify or discontinue them at any time.

    • Discounts/promo codes apply only to qualifying items (as specified by SWANS USA) that are in stock while supplies last. Discounts/promo codes cannot be used for pre-orders or back-orders. Other restrictions may apply.

    • SWANS USA may limit the quantity of products that can be purchased with discounts/promo codes.

    • Discounts/promo codes can be used only once.

    • Discounts/promo codes cannot be combined with other offers, unless otherwise specified by SWANS USA.

    • Discounts/promo codes can only be used toward purchases made on this Site, and are not redeemable for cash or credit.

    • Discounts/promo codes cannot be applied toward previous purchases.

    • Discounts/promo codes do not apply to shipping or handling charges or applicable taxes.

    • Where a discount/promo code has a minimum purchase requirement, shipping and handling charges and applicable taxes do not count toward the minimum purchase amount.

    • The entire value of a discount/promo code must be used in a single transaction. No refund or credit will be given for any leftover value.

    • If you return an item purchased using a discount/promotion code, SWANS USA will subtract the value of the discount/promotion code from your return credit or refund.

5. USE OF THIS SITE.

  1. 5.1 Our Limited License to You. Subject to your compliance with these Terms of Use and all applicable laws, SWANS USA hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access this Site (including Site Content) solely for your own lawful personal, family or household use or (if applicable) for your swim team's lawful use. You acknowledge and agree that the above license is immediately revocable and terminable by SWANS USA, if SWANS USA determines, in its sole judgement, that you are in violation of these Terms of Use or any applicable law or that your use of this Site may expose SWANS USA or its Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of SWANS USA or its Suppliers.

  2. 5.2 Prohibited Uses. Any unauthorized or unlawful use of this Site or any Site Content is strictly prohibited. Specifically, you shall not:

    • use this Site or any Site Content for any unlawful purpose, including, without limitation: operating any scam or fraudulent scheme (such as a pyramid or ponzi scheme); impersonating another, or making unauthorized use of another's information; disseminating junk email, spam, or other unsolicited and unwanted messages or communications; or collecting personal information from or about others without their knowledge or consent, including through "phishing" or under any other false pretense;

    • use this Site to submit, upload, store, display, transmit, publish or distribute any User Content that: (i) is unlawful; threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar; pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous; or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii) promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication, underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains, promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid schemes and ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or material that is designed to damage, interfere with, intercept, lock out, or expropriate any software, hardware, information or data; or (viii) violates or misappropriates another's copyright, trademark, trade secret, patent, right of publicity, right of privacy, contractual right, or other property or proprietary right of any kind (including, without limitation: using another's name, likeness, photo, or other identity without consent);

    • copy, reproduce, distribute, sell, lend, rent, lease, or modify, translate, or otherwise make derivative works from, this Site or any Site Content;

    • use this Site for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of developing any product or service to compete against SWANS USA;

    • interfere in any way with the operation of this Site, or any server, network or system associated therewith, including, without limitation: hacking, mail-bombing, flooding, overloading, or making "denial of service" attacks; probing, scanning or testing the vulnerability of this Site, or any server, network or system associated therewith; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another's account that you are not expressly authorized to access;

    • use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, or automated agents or scripts) to access this Site, or to register multiple accounts on this Site, or to generate automated searches, requests, or queries to this Site, or to strip, scrape, extract, or mine data or information from this Site (except, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from this Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file);

    • remove, erase, conceal, alter, or otherwise tamper with any SWANS USA or third-party intellectual property, attribution, or other legal notices that appear on this Site or any Site Content;

    • frame, or otherwise create a browser or border environment around, any portion of this Site or any Site Content;

    • use any Site Content: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes (unless with the express prior written consent of SWANS USA); (ii) in any way that falsely suggests or implies an association or affiliation with, or endorsement, sponsorship or approval by, SWANS USA; or (iii) in any way that defames or disparages SWANS USA or its Suppliers; or

    • make any other use of this Site or any Site Content in a way that violates these Terms of Use or any applicable law.

  3. 5.3 User Content. By submitting User Content on this Site (whether your submission is solicited or unsolicited), you expressly acknowledge and agree as follows:

    • Your submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality. No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and SWANS USA by reason of your submission. Your submission is not returnable and may be retained indefinitely by SWANS USA and its successors and assigns.

    • You represent and warrant that your submitted User Content does not contain private or confidential information and does not violate any third-party right or any applicable law.

    • You expressly grant to SWANS USA and its successors and assigns a non-exclusive, irrevocable, worldwide, perpetual, royalty-free, freely sublicensable, freely assignable and transferable, unlimited and unrestricted license to use, copy, reproduce, store, archive, modify, excerpt, adapt, translate, prepare derivative works based upon, publicly perform, publicly display, exhibit, broadcast, stream, publish, distribute, and otherwise exploit your submitted User Content and materials derived therefrom, in whole or in part, for any and all purposes (whether commercial or noncommercial, including, without limitation, for advertising, marketing, promotion, publicity, and product/service development, manufacturing, sale and distribution purposes) and in any and all media (whether now known or hereafter developed, including, without limitation, all forms of print, broadcast, electronic, Internet and social media) (collectively, "Licensed Uses"); it being understood and agreed that you will not have any right or claim to any compensation, payment, credit, attribution, notice, approval or inspection, and SWANS USA and its successors and assigns will not have any duty, obligation or liability to you whatsoever, with respect to any Licensed Uses of your submitted User Content. The aforementioned license will continue and remain in full force and effect even if you subsequently cease using this Site or terminate your account with SWANS USA or delete your submitted User Content from your account.

    • SWANS USA and its successors and assigns will have the absolute right to remove, delete, or block or disable access to, any User Content posted on this Site which SWANS USA determines, in its sole judgment, violates these Terms of Use or any applicable law, or may expose SWANS USA or its Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of SWANS USA or its Suppliers.

  4. 5.4 DMCA Policy. SWANS USA respects the intellectual property of others and asks that users of this Site do the same. To comply with the Digital Millennium Copyright Act (Title 17, U.S. Code) (hereinafter, "DMCA"), SWANS USA has adopted and implemented a policy that provides for the prompt removal of allegedly infringing User Content and for the termination of the account of any user who is determined by SWANS USA to be a repeat infringer.

    SWANS USA's Designated Agent: The following is SWANS USA's Designated Agent for receiving notifications of claimed copyright infringement:

    2990 Canada Blvd., Glendale CA, 91208

    office@swans-us.com
    +1 (818)-288-1949

    Notice of Claimed Copyright Infringement: Notification of claimed copyright infringement must be in writing and sent to SWANS USA's Designated Agent listed above, and must include the following information:

    • a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

    • identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;

    • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SWANS USA to locate the material;

    • information reasonably sufficient to permit SWANS USA to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;

    • 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 the law; and

    • 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.

    Counter-Notification to Claimed Copyright Infringement: Under the DMCA, if a notice of copyright infringement has been filed against your User Content, you may make a counter-notification with SWANS USA's Designated Agent listed above. The counter-notification must be in writing and include the following information:

    • your physical or electronic signature;

    • identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

    • a statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and

    • your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of California, U.S.A., if you reside outside of the U.S.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.

    Upon receiving a valid counter-notification, SWANS USA may reinstate the removed or disabled User Content in accordance with the DMCA.

    Please note that, under the DMCA, any person who knowingly makes material misrepresentations in a notification of claimed infringement or in a counter-notification may be liable for damages.

  5. 5.5 Third-Party Sites/Products/Services. This Site may contain links and advertisements about websites, products and services provided by third parties (each, a "Third-Party Site/Product/Service"). Such links and ads are provided for users' convenience and general information purposes only. SWANS USA neither owns or controls, nor sponsors, endorses or approves, any Third-Party Site/Product/Service. The display of links and ads does not constitute or imply SWANS USA's ownership, control, sponsorship, endorsement or approval of any Third-Party Site/Product/Service. SWANS USA is not responsible or liable for, and does not make any representation or warranty (whether express or implied) with respect to, any Third-Party Site/Product/Service. If you use a Third-Party Site/Product/Service, you do so of your own volition and at your own risk. You understand that when using a Third-Party Site/Product/Service, you are subject to the terms of use and privacy policy of the third-party provider, and not these Terms of Use or SWANS USA's Privacy Policy. Any claim you may have in relation to a Third-Party Site/Product/Service must be brought directly against the third-party provider. You acknowledge and agree that in no event will SWANS USA be liable in any way for any injury, loss or damage incurred by you as a result of your use of a Third-Party Site/Product/Service, or for any act or omission of the third-party provider.

  6. 5.6 Linking to SWANS USA. You may link to this Site, provided that you comply with the following terms and conditions:

    • Your link must be a text-only link. The SWANS USA logo may not be used for linking purposes, except with the express prior written consent of SWANS USA.

    • You do not frame or otherwise create a browser or border environment around any portion of this Site or any Site Content.

    • You do not link to this Site from any adult or sexually oriented website.

    • You do not misrepresent or falsely suggest that your website or product or service is sponsored, endorsed or approved by, or affiliated with, SWANS USA.

    • You do not disparage SWANS USA, or publish false, misleading or inaccurate information about SWANS USA.

    You also acknowledge and agree that SWANS USA is under no obligation to support your link to this Site and may block traffic from your website at any time and for any reason.

6. USER INDEMNITY. By using this Site, you agree to (i) indemnify and hold harmless SWANS USA and its Suppliers (including their respective officers, directors, employees, agents and representatives) (collectively, "SWANS USA and Related Parties") from and against any claim, action, suit, proceeding or investigation brought by a third party (hereinafter, a "Third Party Claim") and (ii) pay any and all damages, settlements, judgments, awards, fines, costs and expenses (including, without limitation, court costs and attorneys' fees) associated with such Third Party Claim, to the extent such Third Party Claim arises out of or relates to any of the following:

  • (i) your use or misuse of, or your reliance upon, this Site or any Site Content or another's User Content;

  • (ii) your violation of these Terms of Use or any applicable law;

  • (iii) any of your User Content;

  • (iv) your use or disposal of any product purchased from this Site; or

  • (v) your use of any Third-Party Site/Product/Service.

NOTE: This provision does not require you to indemnify any of SWANS USA and Related Parties for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with this Site.

SWANS USA reserves the right, at your expense, to assume the legal defense of a Third Party Claim for which you are required to indemnify SWANS USA and its Suppliers, and you agree to fully cooperate with SWANS USA in such legal defense. You agree not to settle any Third Party Claim for which you are required to indemnify SWANS USA and its Suppliers, without the express prior written consent of SWANS USA. SWANS USA will use reasonable efforts to notify you in the event SWANS USA receives notice of a Third Party Claim for which you are required to indemnify SWANS USA and its Suppliers; however, SWANS USA's failure to so notify you will not in any way excuse or relieve you from your indemnity obligations hereunder.

7. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. By using this Site, you acknowledge and agree as follows:

  • (i) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, SWANS USA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, SWANS USA AND ITS SUPPLIERS DO NOT WARRANT THAT: (A) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT WILL BE ACCURATE, ERROR-FREE, UP TO DATE, COMPLETE, OR USEFUL, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECT OR ERROR IN THIS SITE (INCLUDING ANY SITE CONTENT) OR IN ANY USER CONTENT WILL BE CORRECTED; OR (C) THIS SITE (INCLUDING ALL SITE CONTENT) AND ALL USER CONTENT WILL BE SECURE AND FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT.

  • (ii) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SWANS USA AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER USER (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS, PROFIT, REVENUE OR GOODWILL, OR LOST OR WASTED STAFF TIME) ARISING OUT OF OR RELATED TO THIS SITE OR ANY SITE CONTENT, OR ANY USER CONTENT, OR THE PROVISION OR USE OF ANY OF THE FOREGOING, EVEN IF SWANS USA AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

  • (iii) IN NO EVENT SHALL SWANS USA AND/OR ITS SUPPLIERS BE LIABLE TO YOU IN CONNECTION WITH A PURCHASE YOU MAKE ON THIS SITE, FOR ANY DAMAGES IN EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE PURCHASE.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. ACCORDINGLY, NOTHING IN THIS SECTION 7 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

8. DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER; CHOICE OF LAW.

  • (i) We encourage you to contact our Customer Service department if you have concerns or complaints about SWANS USA. Generally, customer complaints can be satisfactorily resolved in this way. If we cannot resolve your concerns informally, disputes between you and SWANS USA shall be resolved pursuant to this Section 8.

  • (ii) You and SWANS USA agree to arbitrate all disputes and claims (including the interpretation and scope of this clause, and the arbitrability of the dispute or claim) relating to SWANS USA, including, without limitation, all claims arising out of or relating to any aspect of your relationship with SWANS USA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this, or any prior, version of these Terms of Use, or that may arise after termination of your relationship with SWANS USA.

  • (iii) Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Under this Agreement, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys' fees, if the applicable law allows. BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND SWANS USA AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT (except small claims court). Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court's authority.

  • (iv) The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes, administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures, as modified by this Terms of Use, and unless otherwise agreed upon by the parties in writing. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.org. Arbitration will proceed at a location that the arbitrator selects within 100 miles of your primary residence, unless you and SWANS USA agree otherwise.

  • (v) The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's award shall be final and may be enforced in any court of competent jurisdiction.

  • (vi) In the event that you are able to demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to costs of litigation, SWANS USA will pay as much of your arbitration filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. SWANS USA also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration. However, SWANS USA will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).

  • (vii) YOU AND SWANS USA AGREE THAT ANY CLAIMS BROUGHT BY YOU OR SWANS USA WILL BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. You and SWANS USA agree to seek only such individual relief – whether in the form of individual damages, an individualized injunction, or other non-monetary individual relief – as is necessary to resolve any individual injury that either you or SWANS USA has suffered or may suffer.

  • (viii) The requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member ("Class Action Waiver") is non-severable. If the Class Action Waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, with the exception of the next sentence. In the event the Class Action Waiver is found to be unenforceable, or in the event the agreement to arbitrate is found to not apply to a dispute, that such action between you and SWANS USA shall proceed in the federal or state courts located in Santa Clara County, California.

  • (ix) Notwithstanding any provision in these Terms of Use to the contrary, SWANS USA agrees that if SWANS USA makes any change to this arbitration provision, such change will not be applicable to any dispute to which you had previously provided notice to SWANS USA.

  • (x) If you do not want to be bound to this agreement to arbitrate, you must opt out of it within 30 days of it first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of these Terms of Use containing an arbitration agreement). To opt out of this agreement to arbitrate, you must send a letter or postcard to SWANS USA's headquarters, to the attention of the "Legal Department" and state that you do not want to be bound by this arbitration agreement. SWANS USA's address is 2990 Canada Blvd., Glendale CA, 91208.

  • (xi) These Terms of Use and your use of SWANS USA are governed by the laws of the State of California, subject to the Federal Arbitration Act, without regard to its choice of law provisions.

  • (xii) These Terms of Use expressly exclude and disclaim the terms of the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to any transaction conducted through or otherwise involving SWANS USA.


9. CHANGES TO TERMS. From time to time, we may also modify these Terms of Use to accommodate new technology, industry practices, regulatory requirements, or for other purposes. If we make material changes to these Terms of Use that would impact your continued use of this Site, we will make reasonable efforts to notify you of such changes (including through email and/or by posting a notice directly to your account), and may also ask you to affirmatively consent to the changes at the time of your next login on this Site. By continuing to use this Site after such notice and/or consent, you agree to be bound by these Terms of Use as modified. If you do not agree with our changes to these Terms of Use, your sole and exclusive remedy will be to discontinue use of this Site.

10. MISCELLANEOUS. If any provision of these Terms of Use is deemed invalid, illegal or unenforceable by a court of competent jurisdiction, the invalidity, illegality or unenforceability of such provision shall not affect the remaining provisions of these Terms of Use, all of which shall remain in full force and effect. No waiver of any provision of these Terms of Use shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and SWANS USA's failure to assert any right under these Terms of Use or to enforce any provision of these Terms of Use shall not be deemed a waiver of such right or provision. swans-us.com may assign its rights and obligations under these Terms of Use to any third party at any time without notice to you. These Terms of Use will be binding upon and inure to the benefit of the parties and their respective successors, heirs, trustees, administrators, and assigns. These Terms of Use contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the subject matter hereof.

11. CONTACT US.

Office of the President
Megabiz, Inc., c/o swans-us.com
2990 Canada Blvd., Glendale CA, 91208

office@swans-us.com
+1 (818)-288-1949

YOU MUST CHECK THE CONSENT BOX BELOW TO CONFIRM THAT YOU HAVE READ AND AGREE TO BE BOUND BY OUR TERMS OF USE AND PRIVACY POLICY.

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