Welcome to the Fluid Mechanics website, maintained and operated by Fluid Mechanics, Inc. (“Fluid Mechanics,” “we” or “us”), and located at https://fluidmechanics.net (the “Website”).

THESE TERMS AND CONDITIONS (“Terms”) governs use of the Website and all services provided by Fluid Mechanics via the Website, including without limitation, our online tools, private sessions, and training offers, provided or made available by Fluid Mechanics under these Terms or accessed by you and any materials provided on or by Fluid Mechanics in connection therewith. TO USE OR ACCESS THE SUBSCRIBER PORTION OF OUR SITE, INCLUDING BUT NOT LIMITED TO CERTAIN ONLINE TOOLS, PRIVATE SESSIONS, AND TRAINING OFFERS, YOU MUST AGREE TO BE LEGALLY BOUND BY THE TERMS BY CLICKING “I ACCEPT” WHERE INDICATED^[a].  IF YOU DO NOT AGREE TO THESE TERMS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE WEBSITE, INCLUDING WITHOUT LIMITATION, OUR ONLINE TOOLS, PRIVATE SESSIONS, AND TRAINING OFFERS OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH AND MUST EXIT IMMEDIATELY.

The following terms and conditions (“Terms”) govern your use of the Website and all services provided by Fluid Mechanics via the Website, including without limitation, our online tools, private sessions, and training offers. By accessing, viewing, or using the content, material, or services available on or through this Website, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, you are not granted permission to use this Website and must exit immediately.

We may amend these Terms at any time without specific notice to you. Your use of the Website following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Website before the change was made. It is the obligation of users visiting the Website before the change to learn of changes to the Terms since their last visit. We reserve the right to revoke your access to the Website or the services or subscriptions made available on the Website as a result of your violation of these Terms or the Privacy and Cookie Notice, or for any reason at all.

THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER CLAUSE. BY USING THE SITE, YOU ARE ACCEPTING THIS AGREEMENT AND, WHILE YOU MAY STILL PURSUE CLAIMS AGAINST FLUID MECHANICS, YOU ARE AGREEING THAT YOU MUST PURSUE YOUR CLAIMS IN A BINDING ARBITRATION PROCEEDING (AND NOT IN A COURT) AND ONLY ON AN INDIVIDUAL (AND NOT A CLASS ACTION) BASIS. PLEASE READ THESE TERMS CAREFULLY TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES.

REGISTRATION

In order to access certain content, services, products or benefits on the Website, you may be asked to register and create an account. As part of the registration process, you must click to agree to these Terms, and may then be asked to select a user name and password. You may also be required to provide Fluid Mechanics with certain information about yourself including some types of personally identifying information such as your email and your address. You are fully responsible for your account, including use of the account by any third party, and maintaining the confidentiality of your password.  You may terminate your account at any time by contacting us by email at swim@fluidmechanics.net.

When placing an order through the Website, you will be required to provide other personal information as applicable, such as shipping address, billing address and payment details. Additional information may be collected by Fluid Mechanics or its third party providers at this time for security and anti-fraud purposes. You represent and warrant that the personal information you provide to us via the Website is true, valid, complete and up-to-date in all respects, and you confirm that you are the person referred to in the shipping (unless the item is a gift) and billing information provided.

BILLING AND PAYMENT

You represent and warrant that: (i) any credit information you supply is true, accurate and complete; (ii) charges incurred by you will be honored by your bank or credit card company; (iii) you will pay the charges incurred by you at the posted prices, including any applicable taxes; (iv) if your initial payment method is dishonored, you will still pay the charges incurred, including any surcharge we may incur due to such dishonored payment; and (v) if you are purchasing goods or services on the Website, you are at least 18 years of age.  You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.

You may be charged local sales tax, if applicable. Your total price will include the price of the product or service PLUS any applicable sales tax, which shall be based on the provided shipping address and the sales tax rate in effect at the time you purchased the product.

If you purchase products or services from Fluid Mechanics or make any payments via the Website with your credit card, the credit card information that you submit to Fluid Mechanics will be protected by encryption, such as with the Secure Socket Layer ("SSL") protocol.  Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission to Fluid Mechanics. You agree that Fluid Mechanics will not be responsible for any failures of the third party to adequately protect such information. You are responsible for all charges incurred under your account, whether made by you or another person using your account.

RETURNS AND EXCHANGES

Returns and Exchanges are governed by our Policy^[b], which is incorporated into these Terms by reference, as if set forth fully herein.

PROPRIETARY RIGHTS

As between you and Fluid Mechanics, Fluid Mechanics owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Website (“Website Materials”), as well as the selection, coordination, arrangement, and organization and enhancement of the Website Materials. All Website Materials are protected pursuant to copyright, trademark, patent and other applicable laws.  You agree not to remove or alter any copyright notice or any other proprietary notice on any Website Materials. As between any user and Fluid Mechanics, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Website are proprietary to Fluid Mechanics or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Website Materials, other than the right to use the Website Materials in accordance with these Terms.

SUBMITTED CONTENT

Certain features of the Website may allow you to contribute comments, feedback, information, content, text, files, graphics, postings, and other materials and information for access, use, viewing and commentary by other users to the Website (“User Content”). By posting User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Website and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of User Content or other material or information to Fluid Mechanics, you grant Fluid Mechanics a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to you whatsoever.

UNAUTHORIZED ACTIVITIES

You agree that you will not (a) use the Website for any illegal or unauthorized purposes that violate any local, national, or international laws (including but not limited to import, export, copyright, and trademark laws); (b) modify, copy, distribute, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any of the Website Materials, unless otherwise authorized by these Terms or in a separate written agreement with Fluid Mechanics; (c) attempt to gain unauthorized access to Fluid Mechanics’s computer system or engage in any activity that interferes with the performance of, or impairs the functionality of the Website or any services provided through the Website; or (d) remove, circumvent, disable, damage or otherwise interfere in any way with any security-related features of the Website aimed at preventing or restricting the unauthorized use of the Website or any of the Website Materials. You may use the Website and the Website Materials consistently with these Terms. Any other use of the Website or Website Materials, including but not limited to the aforementioned unauthorized uses, without prior written permission of Fluid Mechanics is strictly prohibited. You acknowledge and agree that the unauthorized use of the Website or the Website Materials could cause irreparable harm to Fluid Mechanics and that in the event of such unauthorized use, Fluid Mechanics shall be entitled to an injunction in addition to any other remedies available at law or in equity.

THIRD PARTY WEBSITES AND CONTENT

The Website is available for informational purposes only. The Website may contain links to other Internet Websites for the convenience of users in locating information, products, or services that may be of interest. Use of such third party links, the Website and the Website Materials and any other material or content on and made available through the Website is entirely at your own risk and your interactions with any trainers, coaches, or other third parties is also entirely at your own risk. Fluid Mechanics does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party websites or the transactions you conduct or enter into with third parties. Your use of any third party’s website is at your own risk, and subject to the terms and conditions of such other websites. Fluid Mechanics does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Website.

PRIVACY AND COOKIE NOTICE

Any personal information that you provide to Fluid Mechanics on the Website is subject to our Privacy Policy. For more information, click here to view the Privacy and Cookie Notice^[c], which is incorporated into these Terms by reference, as if set forth fully herein.

DISCLAIMER

Fluid Mechanics, its subsidiaries, and affiliates, are not responsible for and do not guarantee the accuracy or completeness of any Website Materials, User Content, products, data, services, links, advertisements or other items contained within the Website. Fluid Mechanics reserves the right to immediately remove any Website Materials or User Content for any reason or for no reason. Fluid Mechanics cannot and does not review all communications or products made available on or through the Website, but, although not obligated to, may review, verify, make changes to or remove any User Content, Website Materials, the Website or the products or services made available in connection with the Website, including information submitted in connection with the Website Materials or other features at any time, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of Website Materials or User Content and that you may not rely on such Website Materials or User Content.

THE WEBSITE, THE WEBSITE MATERIALS, USER CONTENT, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE WEBSITE ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE WEBSITE IS ENTIRELY AT YOUR OWN RISK. FLUID MECHANICS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE WEBSITE, THE USER CONTENT, THE WEBSITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE WEBSITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER CONTENT, THE WEBSITE, THE WEBSITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE WEBSITE, IS WITH YOU.

FLUID MECHANICS WILL NOT BE LIABLE FOR ANY CLAIM FOR PERSONAL INJURY, DAMAGE, AND/OR LIABILITY ARISING OUT OF YOUR USE OF OR YOUR RELIANCE ON THE INFORMATION, DATA, AND ANY OTHER MATERIALS, MADE AVAILABLE TO YOU BY FLUID MECHANICS OR THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY CLAIM ARISING OUT OF OR RELATED TO YOUR INTERACTIONS WITH ANY TRAINERS, COACHES, OR OTHER THIRD PARTIES. YOU ACKNOWLEDGE THAT ALL ACTIVITIES RELATED TO EXERCISE ENTAIL MEDICAL RISKS, INCLUDING BODILY INJURY OR DEATH. YOU ASSUME ANY RISKS RELATED TO INCORPORATING INTO YOUR PERSONAL LIFE ANY INFORMATION EXPLICITLY CONTAINED IN OR IMPLIED FROM THE CONTENTS OF THE WEBSITE AND USE OF THE INFORMATION IS AT YOUR SOLE RISK.

LIMITATION OF LIABILITY

FLUID MECHANICS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE WEBSITE, THE USER CONTENT, THE WEBSITE MATERIALS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY CLAIM ARISING OUT OF OR RELATED TO YOUR INTERACTIONS WITH ANY TRAINERS, COACHES, OR OTHER THIRD PARTIES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR FLUID MECHANICS HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF FLUID MECHANICS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE WEBSITE, USER CONTENT, THE WEBSITE MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE WEBSITE, OR THE SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION ANY CLAIM ARISING OUT OF OR RELATED TO YOUR INTERACTIONS WITH ANY TRAINERS, COACHES, OR OTHER THIRD PARTIES EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE WEBSITE AND THE SERVICES AND PRODUCTS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF FLUID MECHANICS AND ITS LICENSORS SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). If you are dissatisfied with the Website or with any of these Terms, or feel Fluid Mechanics has breached these Terms, your sole and exclusive remedy is to discontinue using the Website.

INDEMNIFICATION 

You shall indemnify Fluid Mechanics and its directors, officers, employees, agents, contractors and licensors (“Fluid Mechanics Indemnitees”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with the Website and your use of the Website, the Website Materials or any services, product or data obtained through the Website, your fraud, violation of law, negligence, willful misconduct, or any other use of the Website, the User Content, the Website Materials, the services, products, information and other materials on, in and made available through the Website, except to the extent attributable to Fluid Mechanics, or any breach by you of these Terms and shall indemnify and hold Fluid Mechanics Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Fluid Mechanics. Fluid Mechanics or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Fluid Mechanics or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Fluid Mechanics, subject to the right of Fluid Mechanics to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.

INTERNET SECURITY 

Fluid Mechanics uses reasonable efforts to ensure that the Website is generally available. However, there will be occasions when access to the Website will be interrupted or unavailable. Fluid Mechanics will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Fluid Mechanics shall not be liable to you for any modification, suspension or discontinuance of the Website. You understand that the technical processing and transmission of any Website content may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent from our Website will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Fluid Mechanics via the Website or the Internet, including, for example, personal information such as your name or address.

COMPLAINT PROCEDURES

If you believe that any content or postings on this Website violates your intellectual property or other rights, please notify Fluid Mechanics by email at swim@fluidmechanics.net with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”  

ARBITRATION

You and Fluid Mechanics agree that any disputes arising from or relating to these Terms or your use of the Site and/or any services offered by the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, which cannot be resolved informally, shall be submitted to final and binding arbitration before one (1) arbitrator; provided, however, in the event that the dispute involves an allegation of liability in excess of $250,000 USD, three (3) arbitrators shall be used. Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration conducted by JAMS pursuant to its Comprehensive Arbitration Rules and Procedure. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow and enforce these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in Pennsylvania, unless Fluid Mechanics elects otherwise.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of Maine. The arbitrator shall not be bound by rulings in prior arbitrations involving different Fluid Mechanics users, but is bound by rulings in prior arbitrations involving the same Fluid Mechanics user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

You acknowledge and agree that you and Fluid Mechanics are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Fluid Mechanics otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.

In the event this Arbitration Section is held unenforceable, then the entirety of this Arbitration Section will be deemed void. Except as provided in the preceding sentence, this Arbitration Section will survive termination of the Terms and your use of the Website.

Notwithstanding the foregoing, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

GOVERNING LAW AND JURISDICTION

These Terms represent the entire agreement between you and Fluid Mechanics with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of Maine, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. By accessing, viewing, or using the services, works, content, or materials on the Website, you consent and agree to (a) (subject to the arbitration requirements set forth) the exclusive jurisdiction of the federal and state courts located in Philadelphia, Pennsylvania; (b) accept service of process by personal delivery or mail; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.

MISCELLANEOUS

The Website is controlled and operated from within the United States. Without limiting anything else, Fluid Mechanics makes no representation that the Website, Website Materials, User Content, services, products, information or other materials available on, in, or through the Website is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Website from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Fluid Mechanics to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”

Fluid Mechanics, Inc.
5942 Monocacy Drive
Bethlehem, PA 18107
swim@fluidmechanics.net

Dated: 12/3/2021

Copyright © 2021 Fluid Mechanics, Inc. All rights reserved.