Updated: May 26, 2022

Previous version: November 9, 2021 Terms of Service

These Terms of Service (this “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website located at www.formswim.com and the FORM mobile software application, each owned and operated by FORM Athletica Inc. (“FORM”), and the services available thereon (collectively, “FORM Services”).

PLEASE CAREFULLY READ THIS AGREEMENT BEFORE REGISTERING FOR OR USING FORM SERVICES. THIS AGREEMENT IS A BINDING CONTRACT THAT GOVERNS USE OF FORM SERVICES, EXEMPTS FORM AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAINS OTHER IMPORTANT PROVISIONS.

BY ACCESSING OR USING FORM SERVICES, DOWNLOADING THE MOBILE APPLICATION OR CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE FORM SERVICES.

PLEASE BE AWARE THAT SECTION 27 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.  THIS PROVISION DOES NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE UNITED KINGDOM (“UK”) OR THE EUROPEAN ECONOMIC AREA (“EEA”), A CONSUMER RESIDING IN THE PROVINCE OF QUEBEC, OR IF OTHERWISE REQUIRED BY APPLICABLE LAW.

1. Definitions:In this Agreement:

(a) “Account” means an account for the use of FORM Services.

(b) “Content” means text, information, graphics, photographs, images, audio, video, location data and other forms of data or communication.

(c) “FORM Content” means: (i) Content that originates from FORM (the “FORM Content”); (ii) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by third party service providers, including by Linked Services (“Third Party Service Content”); (iii) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by other users of FORM Services (“User Content”); and (iv) Content submitted, posted, displayed, transmitted or provided to or through FORM Services by you for your own use or for use by other users of FORM Services (“Your Content”).

(d) “FORM Goggles” means the FORM Swim Goggles, a product containing smart display and activity tracking technology, manufactured by or on behalf of FORM that is compatible with FORM Software.

(e) “FORM Group” means FORM and each of FORM’s affiliates, licensors, suppliers and service providers, and each of their respective directors, officers, employees, contractors, agents, shareholders, distributors and representatives, jointly and severally.

(f) “FORM Software” means computer programs (including firmware, software and updates for FORM Goggles) designed to interoperate with the Services and licensed by you from FORM.

(g) “Linked Service” means an online service or site (such as social networking, location tracking, fitness tracking and messaging) operated by a third party to which you have subscribed and which you link to your Account.

(h) “Use” means any and all forms of use, including copy, reproduce, load, install, access, configure, reformat, modify, reformat adapt, alter, edit, change, delete, enhance, translate, adapt, host, store, backup, archive, combine with and incorporate into other works, create derivative works from, publish, publicly perform, publicly display, publicly distribute, distribute to the public, broadcast, exhibit, communicate to the public and otherwise fully exploit and use.

(i) “User Device” means a personal computer, mobile phone or other mobile device that is owned or controlled by you and is compatible with FORM Software.

2. Other Agreements and Terms/Policies:

(a) General: This Agreement is in addition to other agreements you may have with FORM, including agreements governing your purchase and use of FORM Goggles (including without limitation the Terms of Sale available at https://support.formswim.com/hc/en-us/articles/360051821293) and agreements governing your installation and use of FORM Software (collectively the “Device/Software Agreements”).

(b) Limited Warranty: Without prejudice to your consumer rights and statutory warranties, the limited warranty made available by FORM at formswim.com/warranty (the “Limited Warranty”), which is incorporated into this Agreement by reference, applies to your purchase and use of FORM Goggles.  BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE LIMITED WARRANTY.

(c) Software Downloads: For your convenience, FORM Services may facilitate the downloading of computer software, including FORM Software. All software available for download through FORM Services is owned by or licensed from FORM or third parties, and the downloading and use of the software is subject to the software license agreement applicable to the software. FORM has no control over the content or availability of any third-party software downloaded from or through FORM Services. Your downloading and use of third-party software and your dealings with the suppliers of the software is at your own risk, and any claims regarding third party software obtained through FORM Services must be directed at those third parties.

(d) Conflicts/Priority: If there is a conflict or inconsistency between this Agreement and any Device/Software Agreements, then: (i) Device/Software Agreements will take priority and govern regarding the specific FORM Goggles or FORM Software to which they apply; and (ii) this Agreement will take priority and govern regarding FORM Services and FORM Content.

3. Changes to this Agreement:

(a) FORM may amend any part of this Agreement by adding, deleting, or varying its terms from time-to-time in its discretion. FORM will provide you with notice of the proposed amendment by posting an amended version of this Agreement with a new “Last Updated” date and alerting you of such amendment by email or through a notification on the FORM Services.  FORM will include a link to the previous version of the terms beneath the new “Last Updated” date. 

(b) The amendments will take effect 30 days after the date on which the amended version is posted.  Prior to that date, the previous version of this Agreement will continue to apply.

(c) If you disagree with any amendments, you may terminate this Agreement by ceasing to use the FORM Services at any time within the 30-day period before the amendments take effect.  If the amendment increases your obligations under this Agreement, or decreases our obligations under this Agreement, then you can also terminate in the 30 days after the amendments take effect.  In either case, there is no cost or penalty for terminating.  If you do not cease using the FORM Services during that time, then by your continued use, you are considered to have accepted the proposed amendments.

(d) You may not change, supplement or amend this Agreement in any manner.

THE FOLLOWING CLAUSE 4 IS NOT APPLICABLE TO QUEBEC CONSUMERS

4. Restrictions/Changes/Availability:FORM Services and FORM Content may contain technologies that restrict or limit the use or functionality of FORM Services and FORM Content (including based on subscription status, time or location). FORM in its discretion and for its sole convenience may change, suspend, discontinue, modify, restrict, remove, delete, disable, cancel or terminate any or all FORM Services or FORM Content (including Your Content), or limit your access to or use of any or all FORM Services or FORM Content (including Your Content), at any time without notice or liability to you or any other person. FORM Services and FORM Content may be interrupted or unavailable from time to time, including for routine (scheduled) and emergency (unscheduled) maintenance, upgrades and repairs or due to the failure of telecommunications links and infrastructure that are beyond the control of FORM, all without notice or liability to you or any other person.

5. Eligible Users:

(a) Eligibility: Except as set forth in Section 5(b) below, in order to use FORM Services you must be of legal age (the age of majority) in the jurisdiction in which you live (which in most jurisdictions is either 18 or 19 years of age) and capable of forming a binding contract under applicable law (including the laws of the jurisdiction in which you are located). By applying for an Account or otherwise using FORM Services, you represent and warrant that you are eligible to use FORM Services as set forth in this Section 5(a) and that you are not prohibited from using FORM Services or FORM Content by applicable law (including the law of the jurisdiction in which you are located) or otherwise.

(b) Youth and Children: If you are under 13 years of age (or the equivalent minimum age in your relevant jurisdiction including 16 years of age in the UK or EEA) (the “Minimum Age”), then you may not use FORM Services. If you are older than the Minimum Age but under the age of majority in the jurisdiction in which you live, then your parent or legal guardian may apply for an Account and enter into this Agreement on your behalf and authorize you to use that Account and FORM Services under their supervision. In those circumstances, your parent/guardian is fully responsible and liable for your compliance with this Agreement and for your use of FORM Services.

(c) Disqualification: You may not use FORM Services if you do not accept this Agreement, if you have breached this Agreement, if your permission to use FORM Services has been suspended or terminated by FORM pursuant to this Agreement, if this Agreement as they apply to you have been terminated or if you are located in a jurisdiction where access to or use of FORM Services or FORM Content is unlawful. 

6. Permitted Use: Subject to this Agreement and all applicable laws, you may use FORM Services and FORM Content for your own lawful, personal use for non-commercial purposes only, only in the manner expressly permitted by FORM Services and FORM Software, and subject to the restrictions and requirements specified in this Agreement. Use of FORM Services or FORM Content for any other purpose or in any other manner is strictly prohibited.

7. Legal Compliance/Location/Language: You are solely responsible and liable for ensuring that your interaction with users of FORM Services and your use of FORM Services and FORM Content (including all of Your Content) complies with all applicable laws, including the laws of the jurisdiction in which you are located. FORM Services and FORM Content are not available in all languages or in all countries.

8. Restrictions/Prohibitions: You may not: (a) use FORM Services or FORM Content in any manner or for any purpose except as expressly permitted by this Agreement; (b) use FORM Services or FORM Content for a commercial or business purpose (whether or not for profit) or for the benefit of any other person; (c) use FORM Services or FORM Content to violate any applicable law (including a law in the jurisdiction in which you are located); (d) use FORM Services or FORM Content in a way that interferes with or disrupts the integrity or performance of FORM Services or FORM Content or related systems or networks, or to attempt to gain unauthorized access to FORM Services or FORM Content or related systems or networks; (e) license, sublicense, grant, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, copy, reproduce, distribute, imitate, publish, republish, translate, repost, publicly display, publicly perform, transmit, distribute, create any interest in, commercially exploit or otherwise give or make available or permit access or use of FORM Services or FORM Content to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge; (f) index, crawl, catalogue, mirror, frame, scrape, cache or otherwise collect or mine data (including the names or contact information of other users of FORM Service) from FORM Services or FORM Content for any purpose whatsoever and using any technologies, tools or methods (including robots, spiders, crawler, or other automatic devices, programs or methodologies) whatsoever; (g) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve or translate FORM Services or FORM Content, create derivative works from or based on FORM Services or FORM Content, merge, embed or combine FORM Services or FORM Content with any other service, software or materials or reverse engineer, disassemble, decompile, convert into human readable format or otherwise attempt to access or derive the source code of, the software or other technologies used to provide FORM Services or FORM Content; (h) use FORM Services to upload, transmit or distribute any virus, worm, “Trojan Horse” or other code or routine that manifests contaminating or destructive properties that may damage, harm, detrimentally interfere with or otherwise adversely affect FORM Services or FORM Content or any computer system, hardware, software, equipment or services or any related data; (i) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices (including proprietary rights notices), proprietary codes or locks, means of identification, digital rights tools or management information, technological protection measures, security or control measures, or agreements on, in or in relation to FORM Services or FORM Content; (j) use multiplexing or pooling software or similar technologies in connection with FORM Services; (k) develop software applications for internal use with FORM Services; (l) attempt to gain unauthorized access to or use of FORM Services or FORM Content or any related computer system, network, hardware, software, equipment, service or data (including by hacking or password mining) or attempt to circumvent the ordinary navigational structure, technical delivery systems or display of FORM Services or FORM Content or attempt to access or use FORM Services or FORM Content by any means that is not purposely made available to you by FORM; (m) test or tamper with the security of FORM Services or FORM Content or attempt to interfere with the proper functionality, operation or performance of FORM Services or FORM Content or any other person’s use of FORM Services or FORM Content; (n) access or use FORM Services or FORM Content to: (i) create a competitive product or service, or a product or service using similar ideas, features, functions or graphics; (ii) copy any ideas, features, functions or graphics of FORM Services or FORM Content; or (iii) monitor or assess the availability, performance or functionality of FORM Services or FORM Content for any other benchmarking or competitive purposes; or (o) authorize, assist, encourage or enable any other person to do any of the foregoing or to use FORM Services or FORM Content in a way that would constitute an infringement of the rights of FORM or any other person or a breach of this Agreement if it were done by you.

9. Voluntary Assumption of Risks:Before using the FORM Goggles or FORM Services while swimming or performing any other physical activities, you should ensure that you are: (a) medically, physically and emotionally fit and fully able to perform such physical activities; and (b) fully informed about the nature of, and the inherent risks associated with, such physical activities.  Such risks may include, without limitation, drowning, hypothermia, disorientation, exhaustion, anxiety, panic, wave action, currents, surface and submerged obstacles, water traffic, inclement weather and wild animal encounters, and such risks could result in losses that involve physical injury or death, emotional trauma or financial losses or property damage (for example, damaged clothes or equipment or medical costs).  You freely and fully assume all responsibility for these risks and any losses that may result, either directly or indirectly, from performing such physical activities.

10. Monitoring:FORM is not obliged to monitor the use of FORM Services or FORM Content (whether posted or transmitted publicly or privately), but FORM reserves the right to do so in FORM’s discretion (including for the purpose of operating FORM Services, verifying compliance with this Agreement or to comply with applicable laws or an order or requirement of a court, law enforcement authority, administrative or regulatory agency or other governmental body).

11. Accounts/Credentials:

(a) General: To access and use FORM Services you must sign up for an Account. At the time you sign up for an Account you must provide a valid user name and password or other sign-on method (such as your Facebook, Google or Apple account) that complies with FORM’s technical requirements (collectively “Credentials”). Without limiting the foregoing or any other provision of this Agreement, you will not use a user name that: (i) is the name of another person with the intention of impersonating that person; (ii) misappropriates, infringes or violates the rights of any other person or any applicable law; or (iii) is offensive, vulgar, obscene or otherwise in bad taste.

(b) Restrictions: You may have only one Account. Your Account and Credentials are personal to you, and may not be shared with any other person. You may not create an Account for anyone else. You are fully responsible and liable for maintaining the confidentiality of your Credentials and for any and all use and misuse of your Account and Credentials (including all transactions using your Account or Credentials) and for all resulting loss, damage and liability. You may not disclose your Credentials to any other person or permit any other person to use your Account or Credentials.

(c) Notices: You must immediately notify FORM’s customer care by using one of the methods available at formswim.com/contact-us if you discover any unauthorized use of your Account or you know or suspect that your Credentials have been lost or stolen or become known to or used by any other person.

(d) Reliance/Verification: FORM is entitled to rely on your duty to keep the Credential confidential, and may act upon any communication that is given through your Account or by using your Credentials. FORM is not under any obligation to verify the actual identity or authority of any person using your Account or Credentials, but FORM in its discretion may at any time require verification of the identity of any person seeking to access your Account and may deny access to and use of your Account and FORM Services if FORM is not satisfied with the verification.

(e) Suspension/Termination: FORM may cancel or suspend your Account or reject, revoke or require that you change or renew your Credentials at any time without prior notice, including if your Account is inactive or if your Credentials fail to comply with this Agreement. If your Account is suspended, cancelled or terminated by FORM, you may not create another Account without FORM’s express prior written consent.

12. Paid Subscriptions:

(a) General:  You can purchase a subscription to FORM’s paid services (a “FORM Membership Plan”) using one of the methods made available by FORM at the time you choose to subscribe, which may vary depending on the particular device you use to access the FORM Services, and may include: (1) subscription through Google Play, (2) subscription through the Apple App Store, or (3) subscription directly through the FORM website or mobile software application. Unless otherwise specified, purchases via Google Play or the Apple App Store are also subject to such third-party’s terms and conditions. For Accounts with an active FORM Membership Plan (each, a “Paid Account”), FORM deems the person under whose name appears on the credit or charge card that pays the charges for the FORM Membership Plan to be the owner and controller of the Paid Account, and the Credentials associated with the Paid Account, for all purposes under this Agreement. Notwithstanding the foregoing, in the event of any gifted FORM Membership Plan, FORM deems the person who signs up for a Paid Account using the gifted FORM Membership Plan to be the owner and controller of the Paid Account, unless and until a credit or charge card is used to pay charges for any FORM Membership Plan renewal, at which point the person whose name appears on such credit or charge card will be deemed to be the owner and controller of the Paid Account.

(b) Paid Account Ownership; Disputed Ownership: If a corporation or other organization’s name appears on the credit or charge card that pays for the FORM Membership Plan, that corporation or organization is deemed to be the owner of the applicable Paid Account (except in the case of gifts, as described above in Section 12(a)).  If any dispute arises as to who owns or controls a Paid Account, the credit or charge card will continue to be charged and you will be responsible to pay for the FORM Membership Plan until FORM receives written confirmation from the Paid Account email address confirming a change in ownership and control of the Paid Account.

(c) Pricing: Current pricing for FORM Membership Plan subscriptions is available at formswim.com/pages/product-pricing, and the following country/region specific pricing pages:

Canada: ca.formswim.com/pages/product-pricing

European Union: eu.formswim.com/pages/product-pricing

United Kingdom: uk.formswim.com/pages/product-pricing

Australia: au.formswim.com/pages/product-pricing. 

Fees for FORM Membership Plans are billed on an annual or monthly basis (depending on the payment term selected at the time of purchase), and are non-refundable.  There will be no refunds or credits for partial months of service or for periods in which your Paid Account remains open but you do not use a FORM Membership Plan.

(d) Subscription Period: Subject to your payment of applicable fees for a FORM Membership Plan subscription, we will provide the FORM Membership Plan to you for the period of time that you have paid for the FORM Membership Plan (the “Subscription Period”). At the end of the Subscription Period, your FORM Membership Plan subscription will automatically renew for an additional Subscription Period until explicitly cancelled by you pursuant to Section 12(e) below.

(e) Cancellation: You may cancel your subscription to a FORM Membership Plan at any time by using one of the methods made available by us at the time you choose to cancel your subscription, including: (1) cancellation via Google Play, (2) cancellation via the Apple App Store, or (3) cancelation via the FORM website or mobile software application. Any cancellation must be made prior to the end of the term of your then-current Subscription Period. These are the only ways to cancel your FORM Membership Plan subscription and you will not be provided with a refund, in whole or in part, of any pre-paid amount.  Email requests or phone requests to cancel your FORM Membership Plan subscription will not be accepted. You will remain liable for all charges accrued on your Paid Account up to the time of cancellation, including full fees for the then-current Subscription Period in which you cancelled your FORM Membership Plan subscription.  Notwithstanding the foregoing, in the event you choose to return your FORM Goggles and cancel your FORM Membership Plan subscription within thirty (30) days from the date you purchased your FORM Goggles (or such other period as set out it in any applicable Device/Software Agreement), FORM shall refund the amount you pre-paid for any FORM Membership Plan. If you purchased your FORM Goggles from a FORM website (including any website whose domain ends in formswim.com), cancellation of, or failure to renew, your subscription to a FORM Membership Plan will result in significantly diminished functionality for your FORM Goggles, including no longer being able to view real-time metrics while using the FORM Goggles.

(f) Subscription Trials: From time to time and at our sole discretion, we may offer free or discounted pricing for you to evaluate a FORM Membership Plan for a limited period of time (the “Trial Program”).  If you register for a Trial Program, it will continue for the term specified by us (the “Trial Period”). At the end of the Trial Period, to the extent permitted by applicable law, you will automatically be charged on a monthly or annual basis for the FORM Membership Plan applicable to the Trial Program, unless you cancel your subscription prior to the end of the Trial Period. Once the Trial Period has expired, you agree that our normal billing rates will apply.  You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of usage) we impose in connection with any Trial Program.  You may not sign-up for multiple Accounts in order to receive additional benefits under any Trial Programs.  

THE FOLLOWING PARAGRAPH DOES NOT APPLY TO QUEBEC CONSUMERS

We may terminate or suspend any Trial Program at any time without notice or liability and in our sole discretion.  We reserve the right to charge or charge more for any Services or product offered through any Trial Program.

13. Linked Services:

(a) General: For your convenience, FORM Services may enable you to link your Account to one or more Linked Services. You may link your Account only to your own personal account for a Linked Service and only if permitted by the terms of service or other agreement that governs your use of the Linked Service. To activate and operate a link between your Account and a Linked Service, you may be required to provide us with your account information (including your username, password or other credentials) for the Linked Service. By linking a Linked Service to your Account, you expressly authorise FORM to collect, retain and use your account information for the Linked Service on your behalf and in order to provide you with access to the Linked Service through your Account and FORM Services.

(b) Cancellation: You may cancel a link between your Account and a Linked Service at any time using the account provisioning tools made available through FORM Services. 

(c) Compliance/Responsibility: You are solely responsible for your selection and use of a Linked Service. Your access to and use of a Linked Service through FORM Services and the information, data and other content available through the Linked Service are subject to this Agreement and the terms of service or other agreements that govern your use of the Linked Service. You will ensure that your use of a Linked Service and the information, data and other content available through the Linked Service complies with the terms of service or other agreements that govern your use of the Linked Service and all applicable laws. Linked Services are independent from FORM, and FORM does not endorse, and has no responsibility or control over, Linked Services. Your use of Linked Services and your dealings with the owners or operators of Linked Services are at your own risk.

14. Users and User Content: FORM is not obligated to screen or verify, and does not guarantee, the identity or background of any user of FORM Services. FORM is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any User Content (whether posted or transmitted publicly or privately), including information about other users of FORM Services. Some User Content may be offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. FORM has no responsibility for or control over the conduct of users of FORM Services. You are solely responsible for your selection and use of User Content and your interactions with other users of FORM Services, and you interact with other users of FORM Services and access and use User Content at own risk. You will ensure that you take reasonable precautions (including conducting appropriate background checks) and exercise the utmost personal care in all interactions with other users of FORM Services, and you should not disclose personal or financial information to other users of FORM Services or agree to meet in person with other users of FORM Services.

15. Third Party Service Content: FORM is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any Third Party Service Content (whether posted or transmitted publicly or privately). Some Third Party Service Content may be offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. FORM has no responsibility or  control over Third Party Service Content or the providers of Third Party Service Content. You are solely responsible for your selection and use of Third Party Service Content and your interactions with the providers of Third Party Service Content, and you interact with those persons and access and use Third Party Service Content at own risk. 

16. Accurate Information: To register with FORM Services, create an Account or use certain aspects of FORM Services, you are required to provide certain information about yourself (including your first and last name, email address, birthdate, gender, weight and height and other contact information) and certain authorizations or instructions. For further information about FORM’s collection, use and sharing of your personal information (including any personal information collected via our website or generated through your use of our products), please refer to FORM’s privacy statement available at formswim.com/privacy-policy. You represent and warrant that all information you provide is true, accurate, current and complete, and that you will update the information from time to time so that it remains true, accurate, current and complete. FORM will rely on the information that you provide. Subject to our obligations under applicable privacy laws, FORM is not under any obligation to verify the truth, accuracy, currency or completeness of any information you provide, but FORM may do so in its discretion, and you hereby consent to FORM making reasonable inquiries and investigations as FORM considers appropriate to verify the information you provide. 

17. Your Content:

(a) Responsibility and Compliance: Without limiting the generality of any other provision of this Agreement, you are solely responsible and liable for Your Content and for ensuring that Your Content complies with the restrictions and requirements set forth in this Agreement and all applicable laws (including the laws of the jurisdiction in which you are located). Without limiting the foregoing, Your Content must not: (i) be misleading, deceptive or fraudulent or otherwise illegal or promote illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes; (ii) be libelous or defamatory, or otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or invasive of another’s privacy; (iii) be harmful to minors in any way; (iv) be hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or otherwise objectionable, as reasonably determined by FORM; or (v) impersonate a FORM employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.

(b) Content Licence: To the extent not prohibited or limited by applicable laws, you hereby grant to FORM and its suppliers, service providers and licensees a non-exclusive, world-wide, unrestricted, transferable, sublicensable, royalty-free, perpetual, irrevocable right and license to Use and to authorize other persons (including other users of FORM Services) to Use Your Content, using any and all media and technologies now in existence or developed in the future, for the purpose of providing FORM Services and FORM Content to you and other users of FORM Services. You hereby unconditionally and irrevocably waive and agree to waive in favour of FORM and its successors, assigns and licensee all moral rights and rights of authorship and attribution that you have or may have in, to or associated with Your Content (the “Content Licence”).

(c) Aggregated Data: To the extent not prohibited or limited by applicable laws, FORM retains the right to use or share any Aggregated Data generated by anyone using the FORM Services, including you and other users of the FORM Services, for any purpose including developing, enhancing and providing FORM Services and FORM’s other current and future products and services. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information.

(d) Warranties: You represent and warrant to FORM that: (i) you own Your Content or otherwise have all requisite rights, licenses, permissions, consents, powers, authorizations, approvals and waivers to Use Your Content and grant the Content Licence; and (ii) the creation, possession and Use of Your Content will not misappropriate, infringe or violate any rights (including privacy rights, personality rights, publicity rights, contract rights and intellectual property rights, including copyrights, moral rights and trademark rights) of any other person, breach any duty or obligation (contractual or otherwise) owed by you to any other person or violate any applicable laws.

(e) Review, Removal and Deletion: FORM is not obligated to review any of Your Content, but FORM may do so without notice to you or any other person. FORM may reject, refuse to accept or post, remove or delete any of Your Content if you breach this Agreement or if Your Content violates this Agreement. You may remove certain of Your Content from FORM Services by using the tools provided by FORM Services, but in certain instances, subject to applicable laws, some of Your Content (e.g. posts or comments) might not be completely removed and copies of Your Content might continue to exist and be accessible by other persons through FORM Services or otherwise (including by persons who have previously downloaded or otherwise copied Your Content). 

(f) Retention by FORM: For greater certainty, and notwithstanding the foregoing in this Section 17 or any other provision of this Agreement, FORM may include copies of Your Content in FORM’s archives and back-up systems and may (subject to our obligations under applicable privacy laws) permanently retain copies of Your Content for legal compliance and administrative purposes.

18. FORM Privacy Statement:FORM Services collect data relating to your use of FORM Service, which data may include information regarding the location of the FORM Goggles and User Devices you use to access FORM Services. For further information about FORM’s collection, use and sharing of your personal information (including any personal information collected via our website or generated through your use of our products), see FORM’s privacy statement available at formswim.com/privacy-policy.

19. Proprietary Rights in FORM Services/Content:

(a) Ownership: FORM Services and FORM Content are protected by Canadian and international intellectual property rights and laws, including copyright and trademark. As between you and FORM: (a) FORM Services and FORM Content are owned solely by FORM and its licensors; (b) Your Content is owned solely by you; (c) User Content is owned solely by the individual who posts or otherwise makes the User Content available through FORM Services; and (d) Third Party Service Content is owned solely by the third party service provider who posts or otherwise makes the Third Party Service Content available through FORM Services. Your use of FORM Services and FORM Content does not transfer to you any right, title or interest in, to or associated with FORM Services, FORM Content, User Content or Third Party Content.

(b) Trademarks: FORM™, FORM Athletica™ and related logos are registered or unregistered trademarks, service marks and trade names owned or licensed by FORM. Other product and company names and logos appearing on FORM Services or FORM Content may be registered or unregistered trademarks, service marks or trade names of their respective owners. Any use of the trademarks, service marks or trade names appearing on FORM Services or FORM Content is strictly prohibited, and nothing on FORM Services or FORM Content is or will be construed as granting, by implication, estoppel or otherwise, any licence or right to use any of those trademarks, service marks or trade names.

(c) Feedback: You agree that if you provide any feedback (including any comments, ideas or suggestions for corrections, enhancements or improvements) to FORM regarding FORM Services or FORM Content, then FORM and its successors, assigns and licensees are hereby licensed to use such feedback in an anonymized format for any and all purposes (including to support, maintain and improve FORM Services, FORM Content and other FORM products and services) without providing any compensation or attribution to you or any other person.

(d) Reservation of Rights: All rights not expressly granted by this Agreement are reserved by FORM.

20. Technical Requirements:You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including FORM Goggles and User Devices), software (including FORM Software) and services (including Internet access and mobile data services) necessary for your use of FORM Services and FORM Content and all data used in connection with FORM Services and FORM Content.

21. Technical Support:FORM is not obligated to provide technical support regarding FORM Services, but may do so in its discretion. Your use of FORM’s technical support regarding FORM Services is governed by this Agreement.

22. Data Storage/Backup:Even though FORM Services may store Your Content in accordance with this Agreement, FORM Services are not data storage or backup services. You are solely responsible for maintaining current and complete backup copies of Your Content using your own systems and services. If your Account is terminated, FORM in its discretion may immediately permanently delete and destroy all copies of Your Content stored in FORM Services without notice to you or any other person subject to our obligations under applicable privacy laws.

23. Communications:You authorize FORM to: (a) accept communications it receives from you by means of FORM Software and FORM Services as if those communications had been given directly by you in writing and signed by you; and (b) respond to your communications through FORM Software and FORM Services, by email, by using a messaging functionality included in FORM Services or using other means of communication. Communications you send to FORM are not effective unless and until they are actually received and processed by the responsible FORM representative. FORM may refuse to process any communications sent to FORM,  or may reverse the processing of any communications sent to FORM, including if the communication appears to be fraudulent or unlawful or defective, inaccurate or incomplete due to a technical malfunction.

24. Complaints/Enforcement:

(a) Complaints: Complaints regarding FORM Content, unauthorized use of personal information, misconduct by users of FORM Services or other matters may be made by contacting FORM using one of the methods available at formswim.com/contact-us.

(b) Enforcement: FORM is not under any obligation to enforce this Agreement or take other legal measures on your behalf against any other person (including another user of FORM Services). 

(c) Disputes: FORM is not responsible or liable for monitoring or resolving disputes between you and any other user of FORM Services or FORM Content.

(d) Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, FORM has adopted a policy of terminating, in appropriate circumstances and at FORM’s sole discretion, subscribers or Account holders who are deemed to be repeat infringers.  FORM may also limit access to FORM Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

(e) Copyright Complaint: If you believe that any work on the FORM Services infringes upon any copyright which you own or control you may file a notification of such infringement with FORM’s Designated Agent as set forth below, and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the FORM Services that you claim is infringing; (4) your address, telephone number and email address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.:

Name of Agent Designated to Receive Notification of Claimed Infringement: FORM Legal Department - Copyright Claim

Full Address of Designated Agent to Which Notification Should be Sent: 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada

Email Address of Designated Agent: copyright@formswim.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification.  You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by FORM or the alleged infringer as the result of FORM relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

25. DISCLAIMERS, LIABILITY EXCLUSIONS/LIMITATIONS, AND INDEMNITY:

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(a) GENERAL DISCLAIMER: YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF FORM SERVICES, FORM CONTENT AND FORM SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, YOU INSTALL AND USE FORM SERVICES, FORM CONTENT AND FORM SOFTWARE AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, SUITABILITY, PERFORMANCE, ACCURACY AND EFFORT RESTS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FORM SERVICES, FORM CONTENT AND FORM SOFTWARE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO: ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, SECURITY, TIMELINESS, TITLE, TRUTHFULNESS, QUIET ENJOYMENT, UNINTERRUPTED SERVICE OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY FORM TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, FORM DOES NOT REPRESENT OR WARRANT THAT FORM SERVICES, FORM CONTENT OR FORM SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS OR DEFICIENCIES IN FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE CORRECTED OR THAT FORM SERVICES, FORM CONTENT AND FORM SOFTWARE WILL BE COMPATIBLE OR OPERATE WITH ANY COMPUTER OR DEVICE, THIRD PARTY SOFTWARE OR SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF FORM OR ANY FORM REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE. IF YOU ARE DISSATISFIED WITH FORM SERVICES, FORM CONTENT OR FORM SOFTWARE, YOUR SOLE REMEDY IS TO CEASE USING FORM SERVICES, FORM CONTENT AND FORM SOFTWARE. IF YOU ARE A CONSUMER AND HAVE YOUR HABITUAL RESIDENCE IN THE UK OR THE EEA, APPLICABLE CONSUMER LAWS MAY NOT ALLOW THE EXCLUSIONS OR LIMITATIONS ON IMPLIED WARRANTIES SET OUT THEREIN, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(b) BETA VERSION DISCLAIMER: WITHOUT LIMITING THE GENERALITY OF SECTION 25(a), IF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE IS IDENTIFIED AS A “BETA VERSION”, THEN THE SERVICES, CONTENT OR SOFTWARE (AS APPLICABLE) IS STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION IS INTENDED TO WORK. FORM RESERVES THE RIGHT TO NOT RELEASE A FINAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE OR LIABILITY TO YOU OR ANY OTHER PERSON.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(c) DISCLAIMER FOR OTHER SERVICES AND CONTENT: WITHOUT LIMITING THE GENERALITY OF SECTION 25(a), YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF LINKED SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL, PROVISION AND USE LINKED SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT AT YOUR OWN RISK. FORM DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND WHATSOEVER (INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS AS TO ACCURACY, COMPLETENESS OR TIMELINESS), WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING LINKED SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT. FORM DOES NOT CONTROL, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY LINKED SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT THAT YOU ACCESS THROUGH OR USE IN CONNECTION WITH FORM SERVICES, FORM CONTENT OR FORM SOFTWARE, OR FOR ANY RESULTING LOSS, DAMAGE OR LIABILITY.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(d) DISCLAIMER FOR LOSS OF YOUR CONTENT: WITHOUT LIMITING THE GENERALITY OF SECTION 25(a), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW FORM IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, YOUR CONTENT, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD. IF YOU ARE A RESIDENT OF THE UK OR THE EEA, THIS PROVISION IS WITHOUT PREJUDICE TO YOUR PRIVACY RIGHTS.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(e) TECHNOLOGY DISCLAIMER: WITHOUT LIMITING THE GENERALITY OF SECTION 25(a), FORM SERVICES, FORM CONTENT AND FORM SOFTWARE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND FORM’S CONTROL, AND MAY NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FORM SERVICES, FORM CONTENT AND FORM SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND FORM IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE OR LOSS RESULTING FROM THOSE PROBLEMS.  IF YOU HAVE YOUR HABITUAL RESIDENCE IN THE UK OR THE EEA, THIS PROVISION IS WITHOUT PREJUDICE TO YOUR PRIVACY RIGHTS.

(f) NO HIGH RISK USE: FORM SERVICES, FORM CONTENT AND FORM SOFTWARE ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY FORM SERVICES, FORM CONTENT AND FORM SOFTWARE) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE IS STRICTLY PROHIBITED.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(g) RELEASE OF CLAIMS: YOU WILL NOT MAKE ANY CLAIM AGAINST ANY OF THE FORM GROUP ARISING FROM. CONNECTED WITH OR RELATING TO ANY OF THE FOLLOWING: (I) YOUR DOWNLOADING OR USE OF ANY THIRD PARTY SOFTWARE OBTAINED THROUGH FORM SERVICES; (II) YOUR USE OF LINKED SERVICES OR YOUR DEALINGS WITH THE OWNERS OR OPERATORS OF LINKED SERVICES; (III) YOUR INTERACTIONS WITH OTHER USERS OF FORM SERVICES OR YOUR USE OF USER CONTENT; AND (IV) THIRD PARTY SERVICE CONTENT OR YOUR INTERACTIONS WITH PROVIDERS OF THIRD PARTY SERVICE CONTENT. IF YOU ARE A RESIDENT OF THE UK OR THE EEA, THIS PROVISION IS WITHOUT PREJUDICE TO YOUR CONSUMER RIGHTS AND STATUTORY WARRANTIES.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(h) LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY DEVICE/SOFTWARE AGREEMENTS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FORM GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PERSONAL INJURY, EMOTIONAL DISTRESS, OR ANY DAMAGE OR LOSS OF ANY NATURE OR KIND (INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) OR LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO FORM SERVICES, FORM CONTENT OR FORM SOFTWARE (INCLUDING YOUR USE OR INABILITY TO USE FORM SERVICES, FORM CONTENT OR FORM SOFTWARE) OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION OF THIS AGREEMENT FORM GROUP IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FORM GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO FORM SERVICES, FORM CONTENT OR FORM SOFTWARE OR ANY RELATED MATTER EVER EXCEED THE GREATER OF: (I) THE TOTAL AMOUNTS YOU PAID TO FORM FOR A FORM MEMBERSHIP PLAN IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE; OR (II) CDN$50. THIS SECTION APPLIES TO LOSS, DAMAGE AND LIABILITY HOWEVER CAUSED AND TO LIABILITY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, STATUTE AND STRICT LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY FORM OR ANY PERSON FOR WHOM FORM IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE YOU OR ANY OTHER PERSON FOR THE LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR FORM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED.  IF YOU ARE A CONSUMER AND HAVE YOUR HABITUAL RESIDENCE IN THE UK OR THE EEA, APPLICABLE PRIVACY AND CONSUMER LAWS MAY NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET OUT THEREIN, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

(i) EXCEPTIONS: THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT MIGHT NOT APPLY TO YOU.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(j) WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS: WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO FORM SERVICES AND/OR THIS AGREEMENT, TO THE EXTENT NOT PROHIBITED OR LIMITED BY THE LAWS IN YOUR JURISDICTION: (A) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (B) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(k) INDEMNITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS FORM GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING LEGAL FEES), CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, OBLIGATIONS AND LIABILITIES (INCLUDING LEGAL FEES AND EXPENSES AND SETTLEMENT PAYMENTS) ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF FORM SERVICES, FORM CONTENT OR FORM SOFTWARE OR YOUR NEGLIGENCE, MISCONDUCT OR BREACH OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, FORM GROUP RETAINS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY THIRD PARTY CLAIM, COMPLAINT, DEMAND, ACTION, SUIT OR PROCEEDING WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE.

26. Suspension/Termination:

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(a) Suspension: FORM in its discretion may at any time immediately suspend or restrict your Account and your permission to access and use FORM Services and FORM Content without notice or liability to you or any other person. Your permission to use FORM Services will be indefinitely suspended, immediately, automatically and without notice or liability to you or any other person, if you breach or otherwise fail to comply with this Agreement.

(b) Cancellation and Termination: This Agreement is effective unless and until terminated. You may cancel and deactivate your Account at any time by contacting FORM using one of the methods available at formswim.com/contact-us. Upon FORM processing such cancellation and deactivation, this Agreement shall immediately terminate.  FORM is under no obligation to store Your Content and may delete your Account and Your Content immediately upon cancellation or may keep your Account and your Content for as long as permitted and/or required by applicable laws.  FORM may terminate this Agreement at any time either by either giving a notice of termination to you, cancelling and deactivating your Account or otherwise denying you access to FORM Services. If you are a Quebec consumer and have not breached this agreement, any termination will be preceded by a 60-day written notice. If you have a Paid Account, this section does not apply and the applicable cancellation and termination rules are those set out in Section 12(e) instead.

(c) Consequences of Termination: Upon termination of this Agreement, you will immediately cease using FORM Services and FORM Content. Notwithstanding any other provision of this Agreement, the obligations and liabilities you incur prior to termination of this Agreement will survive termination, and Sections 9, 12 through 20, 22 through 25, 26(c) and 27, and all other provisions of this Agreement necessary to their interpretation or enforcement, will survive termination and continue to apply and be binding upon you and FORM.

27. General Matters

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(a) Governing Law: This Agreement, the relationship between you and FORM and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If you are a consumer and have your habitual residence in the UK or the EEA, you may benefit from additional rights and protection afforded to you by mandatory provisions of the laws of your country of residence, and nothing in this Agreement shall affect the enforceability of these additional rights and protection.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(b.1) Disputes:

(i) All disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the applicable Rules of Procedure of the Vancouver International Arbitration Centre (VanIAC). The appointing authority shall be the VanIAC. The case shall be administered by the VanIAC in accordance with its Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. 

(ii) Each party will cover its own fees and costs associated with the arbitration proceedings; however, if the arbitrator finds that you cannot afford to pay the fees and costs reasonably associated with the arbitration proceedings, we will pay them for you. 

(iii) The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that they will not appeal any arbitration decision to any court.

(iv) Notwithstanding the foregoing, FORM may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by FORM through injunctive relief and other equitable remedies without proof of monetary damages.

(v) If this Section 27(b.1) is found to be unenforceable or if it does not apply to you, then the entirety of this Section 27(b.1) will be null and void and, in that case, you hereby irrevocably submit to the personal and exclusive jurisdiction of the courts of the Province of British Columbia for resolution of any lawsuit or court proceeding permitted under this Agreement. If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.

(vi) If you are a consumer and have your habitual residence in the UK or the EEA, this Section 27(b.1) does not apply to you, and you may bring a claim to enforce your consumer rights in connection with this Agreement in your country of residence.

THE FOLLOWING CLAUSE IS APPLICABLE TO U.S. CONSUMERS ONLY

(b.2) Disputes for U.S. Consumers

(i) You may choose to have the arbitration conducted by telephone, based on written submissions, or at another mutually agreed upon location.

(ii) YOU AND FORM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and FORM are instead electing that all claims and disputes shall be resolved by arbitration under this Agreement, except as specified herein.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  

(iii) ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then claim must be severed from the arbitration and brought in Vancouver, British Columbia, Canada. All other claims shall be arbitrated. 

(iv) You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada, within 30 days after first becoming subject to this Agreement, or by contacting FORM using one of the methods available at formswim.com/contact-us.  Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of the arbitration provisions under this Agreement.    If you opt out of this arbitration, all other parts of this Agreement will continue to apply to you.  Opting out of this arbitration has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. 

(v) Except as provided in herein, if any part or parts of this Section 27(b.2) are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Section 27(b.2) shall continue in full force and effect.

(vi) This Section 27(b.2) will survive the termination of your relationship with FORM.

(c) Notices: FORM may deliver notices under this Agreement to you by email to any email address that you provide to FORM (including when you subscribe for your Account). You are solely responsible for ensuring that your email addresses on file with FORM are and remain current and correct throughout the term of this Agreement, and you will promptly give notice to FORM of any change to your email addresses. You will give all notices under this Agreement to FORM in writing using one of the methods available at formswim.com/contact-us.

(d) Force Majeure: Notwithstanding any other provision of this Agreement, FORM will not be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond FORM’s control. Any delay or failure of that kind will not be a breach of this Agreement by FORM, and the time for FORM’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

(e) Miscellaneous: You and FORM are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between you and FORM. Upon request by FORM, you will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of this Agreement. No consent or waiver by FORM to or of any breach of this Agreement by you will be effective unless in writing and signed by FORM or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. Unless otherwise stated in these Terms, either party’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which that party may be lawfully entitled under this Agreement or at law, and each party will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in their essential purpose. This Agreement is between you and FORM, and no other person shall have any rights or obligations pursuant to this Agreement, including the right to enforce any of its terms. You may not assign this Agreement or any of your rights or obligations under this Agreement. FORM may assign this Agreement and any or all of FORM’s rights and obligations under this Agreement and you hereby consent to such assignment. FORM may use subcontractors to perform FORM’s obligations under this Agreement. The provisions of this Agreement will enure to the benefit of and be binding upon you and FORM and your respective successors, permitted assigns and personal representatives.

(f) Interpretation: In this Agreement: (i) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (ii) words importing the singular number only include the plural and vice versa; (iii) words importing a gender include both genders; (iv) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (v) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vi) “law” includes common law, equity, civil law, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (vii) “discretion” or any variation thereof means the relevant party’s sole, absolute and unfettered discretion.

THE FOLLOWING CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS

(g) Complete Agreement/Governing Language: This Agreement set forth the entire agreement between you and FORM regarding the subject matter of this Agreement, and supersede all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may not be modified, except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by FORM. You and FORM have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais. Except in Quebec or as otherwise required by applicable law, any non-English translation of this Agreement provided by FORM is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of this Agreement will take priority and govern.

If you have any questions or comments regarding this Agreement, you may contact FORM using one of the methods available at formswim.com/contact-us by mail at 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada, or by email at support@formswim.com.