GroupSwim: Terms Of Service Agreement

Last Updated: June 6, 2007

GroupSwim is a web-based service that allows groups and organizations to create community websites for online discussions, sharing information, and aggregating group data.

The service is operated by TN20, Inc, ("TN20") as the GroupSwim Service, and is found at www.GroupSwim.com. These terms of service covers your use of the GroupSwim Service for creating and enjoying online Communities.

By registering with GroupSwim, creating, or using Group Site Communities built using GroupSwim ("GroupSwim" or "Site"), you agree to be bound by these terms of service ("Terms of Service" or "Terms").

Description

GroupSwim offers an online web Service for creating your own Online Communities ("Service"). Below is a brief overview of what we do:

Group Site Communities
Groups Sites are online communities created by Group Site owners and the Group Site Members through the use of the GroupSwim Service, for Members to connect with other Members online. Group Sites include features such as profiles, discussions replies, comments, recommendations, file sharing, photo sharing, reviews, ratings, and events, among others.
Groups
All Group Sites have the option of creating one to many groups. A sub groups is a community (or communities) within the primary Group Site Community. Groups can be public or private. Any member of a group must be a member of the primary Group Site Community. If a group is public and the primary Group Site Community is private the group is only visible to the members of the primary Community. If both a Group Site and the Groups are private they are only visible to their respective members.
Members
People who register on GroupSwim to create, find, visit, use, and contribute to one or more Group Site Communities. This can include posting Content or responding to Content.
Group Owners
Members who have created a Group Site Community on the GroupSwim Service.
Content
Any work of authorship [(other than the user interface of a Community)], including member profiles, discussions, comments, recommendations, photos, , , , files, replies, or other materials posted on or transmitted through the GroupSwim Service or through any GroupSwim Community. Group Site Communities, in turn, control Content. If the Community Owner designates the Community as private, any Content submitted to that Community is deemed to be Private Content. Private Content is licensed for use only within the Community into which it is posted. Public Content is available in the Community in which it is posted, other affiliated Communities, as well as via the GroupSwim search mechanisms.
Tags
"Tags" are keywords to help you organize and quickly find Content You can create and assign tags to any content within GroupSwim. GroupSwim also creates tags to help organize content. All your tags are saved in your profile for quick reference and sharing with others.
GroupSwim Services
Include, but aren't limited to: single sign-on (via a "GroupSwim display name") for all Online Communities; managing lists of friends and contacts; messaging between Members; importing of contacts who are not Members of GroupSwim; navigation; and search. For Community Owners, we also offer: member registration; member management; Community management and configuration; External APIs; Tag mangement; Search.

Ownership of Content

GroupSwim does not claim any ownership rights in the Content you provide. You also own the Content you create and upload ("your Content"). After posting your Content, you continue to retain all ownership rights in such Content, and you continue to have the right to use and license your Content in any way you choose.

These Terms of Service includes a number of licenses that are necessary for GroupSwim to make your Community and your Content available through the GroupSwim Service. For example, without the right to modify Content, GroupSwim would not be able to format Content to meet technical requirements, and without the right to publicly perform or publicly display Content, GroupSwim could not make the Content available for other Members to view.

Licenses to Content

License from You
Your Content remains yours. We claim no ownership interest in the Content you provide on Communities using the GroupSwim Service. However, we also want to encourage sharing of Content between Members and Communities across the GroupSwim Service. To this end, by uploading Content to a Community in which the Content is designated as Public Content, you grant to GroupSwim and all other Members a nonexclusive license to reproduce, create derivative works of, distribute, publicly perform, and publicly display such Content on the condition that the Content is attributed in a manner specified by its author, if at all (a "Public Content License").
If you upload Content to a Community in which the Content is designated as Private Content, you grant to GroupSwim and all other Members of that Community a nonexclusive license to reproduce, distribute, publicly perform, and publicly display such Content on that Community (including any RSS feeds and other distribution that is part of such Community) (a "Private Content License").

Unless you expressly state alternative applicable license terms in connection with your Content submission, the Public Content License will apply by default to Public Content and the Private Content License will apply by default to Private Content.

You are responsible for making sure that you have all rights in the Content you post that are necessary for you to grant everyone either the Public Content License or the Private Content License.

Deletion of content or Group Site. The Group Site owner can delete Content or the Group Site community at their discretion. If a Group Site Community or Group is deleted the Content associated with that Community may also be deleted at the discretion of the Group Site Owner.
License from GroupSwim
GroupSwim grants to you a Creative Commons Attribution License to the Content made available by GroupSwim for which GroupSwim owns the copyrights. In the event of a conflict between the Creative Commons Attribution License and these Terms, these Terms will control. GroupSwim does not grant you any rights to another Member's Content.
License to use the GroupSwim Service
During the term of these Terms, GroupSwim grants you a limited, revocable license to use the software underlying and enabling the GroupSwim Service as required for your use of the Online Communities built on top of it, subject to the terms and conditions of these Terms.

Proprietary Rights

Content You agree to comply with the license and restrictions applicable to each item of Content you post, copy, access, or use.

You agree that all the intellectual property in the GroupSwim Service, other than the Content you provide, is owned by GroupSwim or the applicable User(s). Except as expressly permitted under these Terms, you agree not to:

Modify, distribute, or create derivative works based on the GroupSwim Service.
Run, rent, lease, loan, or sell access to the GroupSwim Service.
Decompile, reverse engineer, or copy the GroupSwim Service or any Group Site Community; and
Reproduce or distribute any Private Content outside the applicable Community.

Trademarks GroupSwim, and other related graphics, our logo and sub-logos, GroupSwim marks, and trade names used on the GroupSwim Service are the trademarks of TN20 and may not be used without permission. Other trademarks, GroupSwim Service marks, and trade names that may appear on GroupSwim are the property of their respective owners.

Accounts, Passwords, and Security You must be a registered Member to create Group Site Communities or contribute content on the GroupSwim Service. As a GroupSwim Member, you are responsible for keeping your password secure. Names of Group Site Communities and GroupSwim IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your GroupSwim ID.

Content and Interaction

You agree to comply with the license and restrictions applicable the Content you post, copy, access, or use.

Content from other Members or advertisers is made available to you through Group Site Communities and the GroupSwim Service. Because GroupSwim does not control such Content, you agree that GroupSwim is not responsible for any such Content, including advertising and information about third party products or services.

Your interactions with other Members on the GroupSwim Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the user.

You agree that GroupSwim is not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User's use or disclosure of your Personal Data (as defined in the Privacy Policy). If there is a dispute between you and any third party (including any User), GroupSwim is under no obligation to become involved.

You release TN20, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to: (i) any disputes with other Members, and/or (ii) the GroupSwim Service.

If you are a California resident, you waive California Civil Code Section 1542, which says: "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."

Premium Services

GroupSwim offers fee-based premium services as described here on the GroupSwim Service. If you choose to sign up for a premium service, you agree to pay the applicable fees and abide by any additional requirements or rules associated with that premium service.

Support and Performance

GroupSwim provides help documentation to assist Group Site Community Owners in creating and enhancing their Community(s). As a Group Site Community Owner, you are responsible for providing and maintaining all support for your Group Site Community

To provide a superior experience for all Members on the GroupSwim Service, you, as a Community Owner, must ensure your Community(s) don't unduly degrade the performance of the GroupSwim Service. If your Community(s) exceed the quotas and limitations set by GroupSwim (e.g., API calls or bandwidth) or otherwise degrade performance of the GroupSwim Service or other services in any way, we may suspend your Community(s) at our sole discretion.

Acceptable Use and Conduct

You are solely responsible for your conduct, Group Site Communities and Content on the GroupSwim Service.

As a User of GroupSwim's free service, you agree not to include any advertising for anything other than your Community, including ads served via an ad-server service like Google AdSense, in any Community or Content you provide on GroupSwim.

You also agree not to post or make available any Content for which you don't have sufficient rights to grant the licenses above. Among other things, this means that you may not include Content from third parties that is subject to license terms that are incompatible with the licenses you grant under these Terms, such as GPL.

You also agree not to post, email, or otherwise make available any Community or Content that:

Is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or harms minors in any way
Harasses, degrades, intimidates or is hateful toward an individual or group of individuals
Impersonates a GroupSwim employee or User or falsely states or otherwise misrepresents your affiliation with a person or entity
Includes personal or identifying information about another person without that person's explicit consent
Is false, deceptive, misleading, deceitful, or constitutes "bait and switch"
Infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships
Creates, sends, or enables anything that constitutes or contains "chain letters," "pyramid schemes," or any advertisement that you are prohibited by law from sending
Constitutes or contains any form of advertising or solicitation if (1) posted in Content; or (2) emailed to Members who have requested not to be contacted about other services, products or commercial interests
Advertises any illegal services or the sale of any items the sale of which is prohibited or restricted by applicable law, including without limitation items the sale of which is prohibited or regulated by applicable law
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
Disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the GroupSwim Service, or that otherwise negatively affects other Members' ability to use the GroupSwim Service
Employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the GroupSwim Service

Additionally, you agree not to:

"Stalk" or otherwise harass anyone
Collect Personal Data about other Members for commercial or unlawful purposes
Use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from Online Communities and the GroupSwim Service - except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or "well-behaved" web services/RSS/Atom clients. We reserve the right to define what we mean by "well-behaved"
Post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on GroupSwim's infrastructure
Attempt to gain unauthorized access to TN20's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the GroupSwim Service
Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the GroupSwim Service or any Community

Privacy and Spam

You agree to comply with all applicable laws with respect to

any collection, use, or disclosure of Personal Data (as that term is defined in the GroupSwim Privacy Policy), and
email communications, including without limitation CAN-SPAM, applicable state laws, and applicable laws in non-U.S. jurisdictions.

You agree to comply with all relevant aspects of the GroupSwim Privacy Policy. You agree not to collect or use Personal Data except as permitted by the GroupSwim Privacy Policy. You agree not to use any Personal Data disclosed to you by GroupSwim for any purpose other than using the GroupSwim Service or a Community in accordance with these Terms and the Privacy Policy. You agree not to harvest any email addresses from Group Site Communities or the GroupSwim Service for the purpose of sending email in violation of applicable law. You agree not to knowingly collect any information from, or develop any Group Site Communities that are targeted at, children under the age of 13.

If GroupSwim provides you, as a Community Owner, Personal Data about other GroupSwim Members, you agree to (1) comply with applicable law and GroupSwim's rules (including the Privacy Policy and anti-spam policy) with respect to such Personal Data and (2) to indemnify GroupSwim for your use of such Personal Data.

GroupSwim Service Policies

GroupSwim may establish general polices and limits concerning use of the GroupSwim Service ("GroupSwim Service Policies"), including (and without limitation) the maximum number of days that Online Communities and uploaded Content will be retained, the maximum number of and size of Content files and objects (including email messages), the maximum disk space allotted to you (as a Community Owner) and to Members on your behalf by GroupSwim, the maximum number of times and duration for which you may access the GroupSwim Service or Online Communities in a given period of time, the maximum bandwidth and the maximum CPU power used by your Group Site Communities or Content. GroupSwim reserves the right to log off or deactivate User accounts that are inactive for an extended period of time.

The GroupSwim Service Policies today limit the number of Online Communities a Community Owner can create to ten (10), each with a quota limit of 5GB (gigabytes) for Content, and 100GB (gigabytes) per month of Community bandwidth.

Copyright Infringement by Members

You, as a Community Owner, agree to promptly address any copyright owner's written notice (including any notices forwarded to you by GroupSwim) that specified Content provided by User of a Community that you control infringes that third party's copyrights, provided that the notice substantially complies with the requirements in the GroupSwim DMCA notice page. If you do not promptly remove the Content specified in the notice, GroupSwim may remove the Content without any liability to you or to the User that posted such Content.

GroupSwim maintains and enforces a policy of terminating the accounts of Members who are repeat copyright infringers.

Your Account

Term These Terms of Service commence upon your acceptance of these Terms and continues until terminated. These Terms will automatically terminate if GroupSwim decides, in its sole discretion, to discontinue the GroupSwim Service.

Deleting Your Account You may delete your GroupSwim account at any time, for any reason, by following the instructions on the GroupSwim Service.

GroupSwim has the right (at its sole discretion) to delete or terminate your account, block your email or IP address, or otherwise terminate your access to or use of the GroupSwim Service or any Group Site Community, or remove and discard any Content within any Community, without notice and for any reason.

Effects of Deleting An Account

Upon deleting your account, these Terms terminates and your access rights to the GroupSwim Service will immediately cease to exist. For Content you wish to delete from the GroupSwim Service, you can delete it by going to each of the Group Site Online Communities to which you've contributed. GroupSwim is not responsible for deleting Content on your behalf. Note that, even if Content is deleted from GroupSwim's active servers, it may remain in archives. GroupSwim will have no obligation to refund any fees paid for premium services.

Survival
The provisions under the following headings will survive termination of these Terms for any reason: Licenses from You (under heading "Licenses to Code"), License from You (under heading "Licenses to Content"), Content and Interaction, Acceptable Use and Conduct, Privacy and Spam, Disclaimer of Warranties, Indemnity, and Limitation of Liability.
Changes to GroupSwim and the GroupSwim Service
GroupSwim reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the GroupSwim Service or any part thereof with or without notice. GroupSwim will not be liable to you or to any third party for any modification, suspension or discontinuance of the GroupSwim Service.

Disclaimer of Warranties

YOUR USE OF THE GROUPSWIM SERVICE, AND ALL CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE GROUPSWIM SERVICE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GROUPSWIM AND EACH USER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. NEITHER GROUPSWIM NOR ANY USER MAKES ANY WARRANTY THAT THE GROUPSWIM SERVICE, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

Indemnity

You agree to indemnify, defend, and hold harmless TN20, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to

any Content you submit, post, transmit, or make available through the GroupSwim Service;
your use or misuse of the GroupSwim Service;
your connection to the GroupSwim Service;
your violation of these Terms; or
your violation of any rights (including intellectual property rights) of a third party.

Limitation of Liability

YOU AGREE THAT GROUPSWIM SHALL NOT BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF GROUPSWIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE GROUPSWIM SERVICES OR ANY CONTENT, (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OF DATA; AND (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY (INCLUDING ANOTHER USER) IN THE GROUPSWIM PLATFORM OR ANY CONTENT; OR (B) FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS IN EXCESS OF THE GREATER OF (i) $100 AND (ii) THE TOTAL AMOUNTS PAID TO GROUPSWIM BY YOU IN THE THREE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.

Updates to Terms of Service

These Terms may be updated or changed by GroupSwim from time to time upon GroupSwim's posting of the amended Terms on this page. If you do not agree to changes to the Terms, you must notify GroupSwim to terminate your account.

In addition to these Terms, you will comply with all policies applicable to GroupSwim and the GroupSwim Service, which policies are (i) either posted in the GroupSwim Service or provided to you and (ii) incorporated by reference into these Terms. General

The failure of GroupSwim to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. Your GroupSwim account is non-transferable. You may not delegate your duties under these Terms or assign these Terms, in whole or in part.

Any unauthorized use of any GroupSwim computer system is a violation of these Terms and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. S 1030 et seq.), Section 502 of the California Penal Code and Section 17538.45 of the California Business and Professions Code. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.

The other Members of the GroupSwim Service are intended third party beneficiaries of your obligations under these Terms.

GroupSwim may assign these Terms to any successor or purchaser of GroupSwim or all or substantially all of its assets.

Any dispute between the parties arising out of these Terms shall be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in San Francisco, CA. You hereby waive any right to a jury trial of any such dispute.

These Terms shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.

These Terms, which incorporate the GroupSwim Privacy Policy and the GroupSwim Policies, constitutes the entire agreement between you and GroupSwim and governs your use of the GroupSwim Service, superseding any prior agreements (whether written or oral) between you and GroupSwim regarding the subject matter hereof.

Contacting GroupSwim

Members with questions about the GroupSwim Privacy Policy and any of the aforementioned statements may contact GroupSwim the following ways:

E-Mail
info@GroupSwim.com
Postal
GroupSwim
665 3rd Street
Suite 508
San Francisco, CA 94107

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