PARTICIPANTS: READ THIS DOCUMENT BEFORE SIGNING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT OR ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
I understand and acknowledge that by signing below, I am legally agreeing to all of the following statements in exchange for being permitted to participate in the Tough Training Trials (T3), which includes all or part of the following: (a) participation in the T3 while wearing a weighted pack as well as water exercises, and (b) Regiment team members and/or participant-led social activities pre- and post- the T3 event.
1. I understand that participating in the T3 event with or without wearing a weighted pack is an extremely hazardous activity. I acknowledge that this is an extreme and unreasonable test of my physical and mental limits that carries with it risks of physical injury that cannot be eliminated completely, including but not limited to an above-average risk of death and/or serious injury. Performing exercises during this event or carrying anything of weight whatsoever including but not limited to other T3 participants, is especially hazardous and brings with it unique dangers that may not be known prior to their occurrence.
2. I expressly, knowingly and voluntarily assume all of the risks of participating in a T3. I understand and acknowledge that these risks include, but are not limited to: falls; illness; infection; contact or collision with people, contact or collision with motor vehicles or machinery; contact or collision with other participants of varying skill levels; contact and the effects of contact with natural and man-made fixed objects; natural and man-made water, road and surface hazards; inadequate competition equipment and/or equipment failure; dangers arising from weather conditions, including but not limited to extreme heat, cold, humidity, ice, rain, lightning or fog; imperfect course conditions; and inadequate safety measures.
I understand and acknowledge that these risks may cause harms including, but not limited to: bodily injury, ranging from minor to severe; illness or infection, ranging from minor to severe; physical and/or mental effects of exposure to extreme conditions and circumstances, ranging from minor to severe; temporary or permanent disability; paralysis; death; and property damage or loss.
I understand that the risks of participating in a T3 may be caused in whole or in part by the actions or inactions and/or neglegence of:
I agree that prior to participating in a T3 I will inspect the facilities, equipment and areas to be used, and if I believe or become aware that any are unsafe or pose unreasonable risks, I agree to immediately notify appropriate personnel and take actions to protect myself and others. I accept full and sole responsibility for the condition and adequacy of my equipment and my assessment of all apparent aspects of the facilities and areas to be used at the respective venue, even those to which I was granted no prior knowledge. I expressly assume all risks and absolve any outside entities and Released Parties of any personal injury I may cause to myself and others.
3. I agree that it is my responsibility to determine whether I am sufficiently fit, healthy, skilled and physically trained to safely participate in a T3. I hereby represent that I am, and on the dates of the T3 will be, in good health and in proper physical condition to safely participate in the T3. I certify that I have no known or knowable physical or mental conditions that would affect my ability to safely participate in the T3, or that would result in my participation creating a risk of danger to myself or to others. I further certify that I have not been advised or cautioned otherwise by a medical practitioner.
I understand that the T3 is such an extreme test of human physical and mental limits that I may not be able to safely complete it, even if I am sufficiently fit, healthy, skilled and physically trained to safely participate. I understand that it is my responsibility to continuously monitor my own physical and mental condition during the T3. I agree to withdraw immediately and to notify appropriate personnel if at any point my continued participation would create a risk of danger to myself or to others. I acknowledge and agree that I will not be reimbursed any portion of any fees paid for participation in the T3 if I withdraw before completing the T3, as I understand that all fees are paid only in exchange for the opportunity to participate to the best of my ability as described in this document, and in no way reflect an entitlement to complete the T3.
I understand that I am strongly advised to consult a medical practitioner before participating, especially if I am pregnant, disabled, or have recently suffered any illness, injury, or impairment. I attest that I am covered by medical insurance, individually or as part of an organization. I will not participate in any aspect of the T3 if I am not covered by medical insurance at such time. I also understand that if I demonstrate my complete reading of this waiver, I am to say "Potato" while shaking the instructors hand at the beginning of the T3. Doing so shall grant me an additional point for the respective event.
4. I assume full responsibility for any injury, loss or damage associated with my use or consumption of alcohol and/or drugs at any point during the T3. I understand the dangers associated with the use or consumption of alcohol and/or drugs and I recognize that such use or consumption might impair my judgment and motor skills. I certify that I am not, and on the dates of the T3 will not be, under the influence of alcohol or any drugs that would in any way impair my ability to safely participate in the T3 or any aspect of it. I assume full responsibility for any injury or loss to myself or to others and for any damage to any personal or real property associated with my use or consumption of alcohol and/or drugs at any point during the T3.
I further understand that the risks and dangers described in the paragraph above include but are not limited to all risks and dangers associated with the consumption of alcohol before, after, or during participation in the T3. I understand that the T3 is an extreme test of mental and physical fitness and that the risks and dangers of consuming alcohol before, after, or during such a test may be magnified. I take full responsibility for any decision to consume alcohol before, after, or during the T3 and I understand that it is my responsibility to know my own limits. I also understand that the responsibility for injury, loss or damage that I assumed in the paragraph above includes but is not limited to full responsibility for any injury or loss to myself or to others and for any damage to any personal or real property associated with any such decision to consume alcohol. I hereby indemnify and agree to hold harmless the Released Parties (as defined below) from any injury, loss, or damage described in this section.
5. I agree to abide by the rules of the T3 and to comply with the directions and instructions of T3 personnel. I agree to become familiar with and abide by all written and/or posted rules of the T3, as well as all posted rules of any venue site, facility, or location at which T3 activities are being held. I further agree to comply with all directions, instructions and decisions of T3 personnel, including but not limited to instructions or directions relating to the manner of my safe participation in the T3 or continued participation in the T3 at any time. Except as otherwise prohibited by law, I agree not to challenge these rules, directions, instructions, or decisions on any basis at any time and I acknowledge that they are reasonable and necessary to reduce risk; protect the safety of participants, spectators, and personnel; and/or promote fairness and the spirit of the T3. I also understand that my participation in any of the challenging activities that happen during the T3 are optional at my sole discretion, and that T3 personnel do not force me to do any of the team or individual based activities. I understand that I am free to quit the T3 at any time at my sole discretion.
AGREEMENT, WAIVER, RELEASE OF CLAIMS, WARNING OF RISK AND ASSUMPTION OF RISK
In addition to the above, I also specifically agree to obey all civil and criminal laws, including traffic laws and regulations.
I also agree to exhibit appropriate behavior at all times; demonstrate respect for all people; and participate with a cooperative and positive attitude. I understand that the T3 personnel may immediately dismiss anyone who disobeys any rules, directions, instructions, decisions, or laws, or whose behavior endangers safety or negatively affects a person, facility, or property of any type or kind.
6. I consent to receive medical care and treatment as determined by T3 personnel. In the event of my injury, accident, or illness, I consent to receive medical care and treatment as deemed advisable in the best judgment of T3 personnel and/or appropriate medical professionals. If necessary, I authorize T3 personnel to consent to such medical care and treatment on my behalf.
I agree to assume liability for any and all medical costs incurred as a result of my participation in the T3 that are not covered by my insurance, including but not limited to costs of: medical care and treatment, ambulance services, hospital stays, and physician and pharmaceutical goods and services. I agree to indemnify and hold harmless the Released Parties (as defined below) from all liability for such costs.
7. I grant permission to the T3 participants to use my photograph and/or any other record of my participation in the T3 for any legitimate purpose. I understand that any and all photographs, motion pictures, recordings, and/or likenesses of me captured during the T3 become the sole property of The Regiment LLC. I grant the right, permission and authority to The Regiment LLC and any of its affiliated entities to use my name and any such photographs, motion pictures, recordings, and/or likenesses for any legitimate purpose, including but not limited to promoting, advertising, and marketing activities. I further understand that The Regiment LLC and any of its affiliated entities or contractors have the full right to sell and/or profit from the commercial use of such photographs, motion pictures, recordings, and/or likenesses.
8. I acknowledge that The Regiment LLC reserves the right to cancel or reschedule any or all aspects of the T3 in the event of emergency or other disaster. I acknowledge that The Regiment LLC in its their sole discretion may delay, modify or cancel any or all aspects of the T3 if natural or man-made emergencies make administering any aspect of the T3 unreasonably difficult or unsafe. I agree that “emergency” is defined to mean any event beyond the control of T3 staff, including but not limited to: high wind, extreme rain or hail, hurricane, tornado, earthquake, flood, acts of terrorism, fire, threatened or actual strike, labor difficulty or work stoppage, insurrection, war, public disaster, random appearances by celebrities that warrants us to all get their autographs (especially Christopher Walken) and unavoidable casualty.
9. I hereby waive, release and forever discharge The Regiment LLC and the other Released Parties from any and all claims I may have arising out of my participation in the T3. I covenant and agree not to sue the T3 instructors, The Regiment LLC or any of the other Released Parties for any such claims. In consideration of being permitted to participate in the T3, I hereby waive, release and forever discharge the following parties (the State of Florida, City of Orlando, Wekiva State Park) from any and all claims.
In consideration of being permitted to participate in the T3, I hereby waive, release and forever discharge the Released Parties from any and all claims, liabilities of every kind, demands, damages (including direct, indirect, incidental, special and/or consequential), losses (economic and non- economic), and causes of action, of any kind or nature, which I have or may have in the future (including court costs, attorneys’ fees and litigation expenses), that may arise out of, result from, or relate to my participation in the T3 or my travel to or from the T3. I understand and acknowledge that these Claims include, but are not limited to, causes of action for death, personal injury, partial or permanent disability, negligence, and property damage or theft; causes of action relating to the provision of first aid, medical care, medical treatment, or medical decisions (at the sites of the T3 or elsewhere); and claims for medical or hospital expenses. I understand and agree that the foregoing waiver, release and discharge applies even if the Claims are caused by the negligent acts, omissions, or carelessness of any of the Released Parties.
I understand that this waiver, release and discharge operates for myself as well as on behalf of my spouse, children, parents, guardians, heirs, next of kin and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on my behalf.
10. I hereby agree to indemnify, defend and hold harmless The Regiment LLC and the other Released Parties from any and all expenses incurred and claims made that relate to my breach of this Agreement. I hereby agree to indemnify, defend and hold harmless T3 Staff and the other Released Parties from any and all expenses incurred and all claims made by myself or others (including but not limited to court costs, attorneys’ fees and litigation expenses) that arise out of or result directly or indirectly from my breach or failure to abide by any part of this Agreement, my failure to follow any rules or directions as defined in Section 5 above, and/or any of my actions or inactions which cause injury or damage to any other person or property.
I understand that this agreement to indemnify, defend and hold harmless operates for myself as well as on behalf of my spouse, children, parents, guardians, heirs, next of kin and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on my behalf.
I understand and acknowledge that by checking the box below or signing below, I agree that the statutes and laws of the State of Florida will apply to all matters relating to this Agreement, including participation in the T3, regardless of the actual location of the T3 or the principles of conflict of laws. I agree that exclusive jurisdiction for any dispute with T3 Staff resides in the courts of the State of Florida and expressly consent to the exercise of personal jurisdiction in the State of Florida in connection with any dispute. I understand and agree that this Agreement is intended to be as broad and inclusive as is permitted by the State of Florida, and that if any provision shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforce-ability of any remaining provisions.
Wow. That was a long read.
1. ACCEPTANCE OF TERMS.
The following terms and conditions (this "TOS") govern all use by you as a Buyer (as defined below) or other non-Organizer (as defined below) user or visitor of (a) the www.bswarm.com website (including all webpages, subdomains and subparts therein contained, the "Site"), (b) any and all services available on or through the Site or otherwise provided by Bswarms, LLC. (“Bswarms”) in connection with events listed on the Site, and (c) all Software (as defined below) (collectively, the "Services"). The Services are owned and operated by Bswarms. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by Bswarms. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY Bswarms. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES.
Bswarms reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
2. DESCRIPTION OF Bswarms.
Bswarms provides a simple and quick means for registered users who are event organizers and planners ("Organizers") to collect event registration fees for their events online from registered users who want to attend such events ("Buyers" or “you”). Organizers may visit the Site, fill out a questionnaire about their event, including pricing, location, ticket inventory, etc., and collect event registration fees online directly from Buyers. Payments are all transacted through Authorize.net or other third party payment service methods (collectively, "Facilitated Payment Modes" or "FPM") or the Bswarms payment processing gateway (the "Gateway"). For more information, please see http://www.bswarm.com. This TOS applies to you and your use of the Services as a Buyer and/or other non-Organizer user or visitor of the Services (“non-Organizer” or “you”). For the Terms of Service Agreement that applies to you and your use of the Services as an Organizer, please see http://www.bswarm.com/tos/organizers.
3. YOUR USE OF THE SERVICES.
3.1 The Services.
Bswarms hereby grants you a non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for the purposes of browsing the Site, and searching for, viewing, registering for, and interacting with, an event that is registered on the Site, in each case (i) in compliance with this TOS, and (ii) to the extent permitted under all applicable laws and regulations (foreign and domestic). Notwithstanding the foregoing, you shall not, and shall not permit anyone else to, directly or indirectly: (i) modify, reproduce or otherwise create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or commercial purposes; (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; (v) engage in any activity that interferes with or disrupts the Services; or (vi) engage in any fraudulent activity or activity that facilitates fraud.
If you are allowed to download or use any software in connection with the Services, Bswarms hereby grants you a personal, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software solely for your internal use in connection with the Services, and only in accordance with this TOS and the written instructions/directions (if any) provided by Bswarms in conjunction with the Software. For purposes of this TOS, “Software” shall mean any and all software that is available on or through the Site or otherwise provided by Bswarms. For clarity, the Software will be deemed a part of the "Services" hereunder.
The Software and the transmission of applicable data is subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
The Software and related documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or such documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this TOS.
4.1 Independent Relationship of FPMs.
It is the responsibility of the Organizer to communicate its refund policy to Buyers and to issue refunds to Buyers via the Site or otherwise. If a Buyer desires to request a refund, Buyer must request the refund from the Organizer. All communications or disputes regarding refunds are between the Organizer and Buyer and Bswarms will not be responsible or liable in any way for refunds, errors in issuing refunds, or lack of refunds in connection with the Services. All communications and disputes regarding chargebacks and refunds are between the Organizer and Buyer and Bswarms will not be responsible or liable in any way for chargebacks in connection with a Buyer’s use of the Services. If you are a Buyer and you wish to request a refund in connection with an event listed on the Services, you should contact the applicable Organizer directly.
5. YOUR REGISTRATION OBLIGATIONS.
6. ACCOUNT, PASSWORD AND SECURITY.
As part of the Site registration process, you will create a password and account. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account. You agree to (a) immediately notify Bswarms of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Bswarms cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account.
7.1 Site Content.
You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content (collectively, "Content"), contained in or delivered via the Services or otherwise made available by Bswarms in connection with the Services (collectively, "Site Content") is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Bswarms may own the Site Content or portions of the Site Content may be made available to Bswarms through arrangements with third parties. Except as expressly authorized by Bswarms in writing or in connection with your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. However, you may print or download a reasonable number of copies of the Site Content for your own informational purposes, provided that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of Bswarms. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
7.2 Your Content.
You acknowledge and agree that if you contribute, provide or make available any Content to the Site ("Your Content"), whether as a Buyer or other non-Organizer, you hereby grant to Bswarms a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit Your Content, in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever, and to allow others to do so, without compensation to you or any other provider of Your Content. You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, (ii) does not involve gambling, gaming, sweepstakes, and/or any other activity with an entry fee and a prize, and (iii) complies with all applicable laws and regulations (foreign and domestic). Bswarms reserves the right to remove any of Your Content from the Site at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to Your Content) or no reason.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed, or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Services should be sent to:
2300 Valley View Lane, Suite 360
Irving, TX 75062
Telephone: (877) 885-7129
Fax: (877) 885-7129
By Email: email@example.com
8.1 Certain Restrictions.
Whether you are using the Services as a Buyer or other non-Organizer, you understand that you are liable for all Content, in whatever form, that you provide or otherwise make available to or through the Services, including to Organizers, Buyers and other non-Organizers. You agree not to use the Services to:
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
harm minors in any way;
impersonate any person or entity, including, but not limited to, an Bswarms representative or forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity;
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation;
upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by Bswarms ; interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
intentionally or unintentionally violate any applicable law or regulation (foreign or domestic), including without limitation (i) regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange (e.g., the New York Stock Exchange, the American Stock Exchange or the NASDAQ) and (ii) laws and regulations (foreign or domestic) regarding the sale or resale of tickets (including without limitation with respect to licensure requirements, maximums or limits on ticket prices, etc.); or
stalk or otherwise harass any person or entity.
8.2 Certain Remedial Rights.
Whether you are using the Services as a Buyer or other non-Organizer, you acknowledge that Bswarms does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that Bswarms and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that Bswarms may preserve Your Content and may also disclose Your Content for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of Your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of Bswarms, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
The following terms and conditions describe the terms and conditions of Bswarm’s referral programs. Bswarms reserves the absolute right to determine whether you or any other user of the Services qualifies for any of the following referral programs.
9.1 Organizer Referral Program.
Bswarms will pay a referral fee to persons or entities ("Organizer Referrers") that refer revenue-generating Organizers to Bswarms, subject to the following terms and conditions: (a) Prior to an Organizer’s initial use of the Services, the Organizer Referrer must have contacted the Organizer and have been instrumental in getting the Organizer initially to register for an event using the Services (as determined by Bswarms in its sole discretion). The referral must be properly registered with Bswarms when the Organizer initially sets up its account and the Organizer Referrer must fully comply with the all instructions with respect thereto. (b) Bswarms will pay the Organizer Referrer twenty-five percent (25%) of the amount actually paid to Bswarms and retained by Bswarms in connection with the Services as a result of actual net sales (i.e., less refunds, credit card chargebacks and all other deducted amounts) for the Organizer’s account during the 12-month period following the date of such Organizer’s first event registration via the Services. The referral fee will be paid at the beginning of each month to the Organizer Referrer if the amount due and unpaid is five dollars ($5.00) or more. Any unpaid balances will be added to any balances due in subsequent months. (c) Bswarms reserves the right to change, modify or terminate this Organizer referral program and/or its terms at any time in its sole discretion. Bswarms reserves the right to determine what, if any, amounts are properly due Organizer Referrers hereunder in its sole discretion.
10. SPECIAL ADMONITIONS FOR INTERNATIONAL USE.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. By way of illustration and not limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of technical data exported from the United States or the country in which you reside.
In addition, the Services are subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not located in, and you are not a national or resident of, any such country. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security's Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.
You agree to defend, indemnify and hold Bswarms, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a "Claim") due to or arising out of: your Content; the events listed on the Service; your use of, contribution to or connection with the Service; your violation of this TOS; and/or your violation of any rights of another. Bswarms shall provide notice to you of any such Claim, provided that the failure or delay by Bswarms in providing such notice shall not limit your obligations hereunder. Bswarms reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting Bswarm’s defense of such matter.
12. SERVICE MODIFICATIONS/SUSPENSIONS.
Bswarms reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. You agree that Bswarms shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
Bswarms, in its sole discretion, may terminate your password, accounts (or any part thereof) and/or your right to use the Services, and remove and discard any and all of Your Content within the Services, at any time for any reason or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due Bswarms, or if Bswarms believes that you have violated or acted inconsistently with the letter or spirit of this TOS. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that Bswarms may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that Bswarms shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).
The Services may provide, or third parties may provide, links to other Internet websites or resources. Because Bswarms has no control over such websites and resources, you acknowledge and agree that Bswarms is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Bswarms shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.
15. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BSWARMS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BSWARMS MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU, OR EVENTS ATTENDED, THROUGH THE SERVICES, OR THE SERVICES THEMSELVES (OR ANY PART THEREOF), WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. BSWARMS IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, BUYER OR OTHER NON-ORGANIZER, ORGANIZER OR THIRD PARTY BEFORE, DURING AND/OR AFTER AN EVENT; AND BSWARMS WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT BSWARMS HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS’ (INCLUDING BUYERS’, OTHER NON-ORGANIZERS’ AND ORGANIZERS’) CONTENT OR LISTINGS, OR THE ABILITY OF ANY USER (INCLUDING BUYERS, OTHER NON-ORGANIZERS AND ORGANIZERS) TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of users, Buyers, other non-Organizers, Organizers and/or third parties in connection with the Site or any Services to Bswarms. Bswarms, in its sole discretion, may investigate the claim and take necessary action.
16. LIMITATION OF LIABILITY.
BSWARMS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BSWARMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US$100.00 IN THE AGGREGATE FOR ALL CLAIMS WITH RESPECT TO THE SERVICES, OR (IV) ANY MATTERS BEYOND BSWARMS’ REASONABLE CONTROL. BSWARMS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. IN ADDITION, BSWARMS IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY FPM SERVICE), AND BSWARMS HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTY SERVICE PROVIDER. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SERVICES, YOU HEREBY AGREE TO RELEASE BSWARMS, AND ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, OTHER PARTNERS, AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER ORGANIZERS, BUYERS, AND OTHER NON-ORGANIZERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES, OR ANY EVENTS LISTED THEREON. IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE Texas CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Notices to you may be made via either email or regular mail to the address in Bswarm’s records. The Services may also provide notices of changes to this TOS or other matters by displaying notices or links to notices to you generally on the Services. Any notice from you to us shall be sent in writing to our mailing address at Bswarms, Inc., 2300 Valley View Lane , Suite 360, Irving Texas, Attn: Counsel.
20. TRADEMARK INFORMATION.
The trademarks, service marks, and logos of Bswarms (the "Bswarms Trademarks") used and displayed in connection with the Services are registered and unregistered trademarks or service marks of Bswarms. Other company, product, and service names used in connection with the Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks", and, collectively with Bswarms Trademarks, the "Trademarks"). The offering of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of Bswarms specific for each such use. The Trademarks may not be used to disparage Bswarms, any third party or Bswarm’s or third party’s products or services, or in any manner (in Bswarm’s sole judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless Bswarms approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Bswarms Trademark shall inure to Bswarm’s benefit.
21.1 Entire Agreement.
This TOS constitutes the entire agreement between you and Bswarms and governs your use of the Services as a Buyer or other non-Organizer, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and Bswarms on the subject matter hereof. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third party Content, third party software or the Services in a manner other than as governed by this TOS.
21.2 Choice of Law.
This TOS and the provision of the Services to you are governed by the laws of the state of TExas, U.S.A., as such laws are applied to agreements entered into and to be performed entirely within Texas by Texas residents.
Any controversy or claim arising out of or relating to this TOS or the provision of the Services shall be exclusively settled by binding arbitration in accordance with the commercial arbitration rules of the Judicial Arbitration and Mediation Service, Inc. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Dallas, Texas, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Subject to the foregoing arbitration provision, you and Bswarms agree to submit to the personal jurisdiction of the courts located within the city and county of Dallas, Texas. Either you or Bswarms may seek any interim or preliminary relief from a court of competent jurisdiction in Dallas, Texas, necessary to protect the rights or property of you or Bswarms (or its agents, suppliers, and subcontractors) pending the completion of arbitration.
21.4 Waiver; Invalid Provisions.
The failure or delay of Bswarms to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of this TOS is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this TOS shall remain in full force and effect.
21.5 Time to File Claim.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this TOS must be filed within two (2) years after such claim or cause of action arose or be forever barred.
Please report any violations of this TOS by email to firstname.lastname@example.org.