Effective: 5 October 2017
By (i) accessing or using any digital product, service or platform referred to as the “SWNG” offerings made available by SWNG, including the related website, the social media service, and any related photo or application (collectively, the “Services”) and/or (ii) completing the registration process for a Service, you represent that (1) you have read, understand and agree to be bound by the terms of this agreement (“Agreement”), (2) you are of legal age to form a binding contract with SWNG; and (3) you have the authority to enter into this Agreement. If you do not agree to be bound by the terms of this Agreement, please do not access or use the Service.
FOR USERS IN THE UNITED STATES: THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
1. Who Can Use the Services
No one under 13 is allowed to create an account or use the Services. Our Services are not directed to children under 13, so if you are a child under 13, please do not register for or use our Services. We or our partners may offer additional Services with additional terms that may require you to be even older to use them. So, please read all terms carefully.
By using the Services, you represent and warrant that:
You can form a binding contract with SWNG—meaning that, in the United States, if you’re between 13 and 17, your parent or legal guardian has reviewed and agreed to the terms of this Agreement;
You are not barred from using the Services under the laws of the United States or any other applicable jurisdiction—for example, you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition; and
You will comply with the terms of this Agreement and all applicable local, state, national, and international laws, rules, and regulations.
If you are using the Services on behalf of a business or some other entity, you represent and warrant that you are authorized to grant all licenses set forth in this Agreement and to agree to this Agreement on behalf of such business or entity.
2. Your Content
Our vision is for SWNG to be a frame on the world, both on our platform and beyond. To do this, we need you to agree to the following terms. Many of our Services let you create, upload, post, send, receive, and store content. When you use our Services to do any of the foregoing, except for the limited license granted to SWNG in this Agreement, you, not SWNG, retain whatever ownership rights you previously possessed in and to that content.
You grant SWNG a worldwide, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, create derivative works from, publicly perform, broadcast, distribute, syndicate, promote, exhibit, and publicly display the content referenced above in any form and in any and all media or distribution methods (now known or later developed).
To the extent necessary, you also grant SWNG and our partners the worldwide, perpetual, irrevocable, royalty-free, sublicensable, and transferable right and license to use your name, likeness, biographical materials and voice in any and all media and distribution channels (now known or later developed) in connection with any content you create, upload, post, send, or in which you appear. This means, among other things, that you will not be entitled to any compensation from SWNG or our partners if your name, likeness, or voice is displayed through the Services, including in the advertising or promotion of SWNG or the Services.
You represent and warrant that: (i) you own the content posted by you on or through the Services or you otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your content on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of content you post on or through the Service; and (iv) you have the legal right and capacity to enter into this Agreement in your jurisdiction.
While we’re not required to do so, we may access, review, screen, and delete your content at any time and for any reason, including if we think your content violates any term of this Agreement. We are committed to creating a safe online environment for our community of users; however, you alone remain responsible for the content you create, post, store, or send through the Services.
We always love to hear from our users. But if you volunteer feedback or suggestions, we want to let you know now that we do not provide compensation for our use of your feedback, ideas, or suggestions.
3. The Content of Others
Much of the content on our Services is produced by users, publishers, and other third parties. Whether that content is posted publicly or sent privately, the content is the sole responsibility of the person or organization that created, posted or sent it. Although SWNG reserves the right to review all content that appears on the Services and to remove any content that violates any term of this Agreement, we do not necessarily review all of it. So we cannot—and do not—take responsibility for any content that others provide through the Services. Because we do not review all content, we cannot guarantee that content on the Services will always conform to our Terms.
5. Respecting Other People’s Rights
SWNG has always stood for freedom of expression. Of course, SWNG also respects the rights of others. And so should you. You therefore may not use the Services to post, send or otherwise make available content that:
violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, or offensive;
contains pornography, graphic violence, threats, hate speech, or incitements to violence;
constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail; or
impersonates any person or entity, including any employee or representative of SWNG.
You are solely responsible for your interaction with other users of the Services, whether online or offline. You agree that SWNG is not responsible or liable for the conduct of any user and SWNG does not endorse any content posted to or through the Services. SWNG reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post content or any personal or other information.
The Services contain content owned or licensed by SWNG (“SWNG Content”). SWNG Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and SWNG, SWNG owns and retains all rights in the SWNG Content and the Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SWNG Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the SWNG Content. Further, the SWNG name and logos used in connection with the Services are trademarks of SWNG or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of SWNG. This Agreement does not grant you any right to use branding, logos, designs, photographs, videos, or any other materials used in the Services, or to download, distribute, syndicate, broadcast, perform, or display any portion of the Services, except as set forth in this Agreement. In short: You may not use the Services in ways that are not expressly authorized by the terms of this Agreement.
6. Respecting Copyright
SWNG honors the requirements set forth in the Digital Millennium Copyright Act and equivalent legislation in the European Union ("EU"). We therefore take reasonable steps to expeditiously remove from the Services any infringing material of which we become aware. And, if SWNG becomes aware that one of its users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate the user’s account.
If you believe that anything on the Services infringes a copyright that you own or control, please provide written notice to our designated copyright agent:
Swing Technologies, Inc. Attn: Copyright Agent, 1 Little West 12th Street, New York NY 10014
If you file a notice with our Copyright Agent, the notice must:
contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
identify the copyrighted work claimed to have been infringed;
identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
provide your contact information, including your address, telephone number, and an email address;
provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
It is our goal to keep our Services a safe place for all users. But we can’t guarantee it. That’s where you come in. By using the Services, you agree that:
You will not use the Services for any purpose that is illegal or prohibited under this Agreement;
You will not use any robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract another user’s information;
You will not use or develop any third-party applications that interact with other users’ content or the Services without SWNG’s consent;
You will not use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services;
You will not use or attempt to use another user’s account without their permission;
You will not solicit login credentials from another user;
You will not upload viruses or other malicious code or otherwise compromise the security of the Services;
You will not attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that you are not authorized to access;
You will not probe, scan, or test the vulnerability of the Services or any system or network; and
You will not encourage or promote any activity that violates the terms of this Agreement.
We also care about your safety while using the Services. So, do not use our Services in a way that would distract you from obeying traffic or safety laws. And never put yourself or others in harm’s way just to capture a photo or video.
8. Your Account As part of the registration process you may be required to provide certain information, such as an email address,
username, and/or password (“Credentials”), which you may not share with any third parties. You are solely responsible for any and all use of your Credentials and all activities that occur in connection with your Credentials. We reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Services and your Credentials, including terminating your access, or requesting additional information to authorize activities related to your Credentials. You agree to immediately notify SWNG of any real or suspected unauthorized use. SWNG cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Certain features and functions of the Services available through our mobile application(s) may require access to and use of your mobile device’s contacts and/or media storage applications (e.g., to use a photograph in your image gallery). Although you may decide whether or not to use these features, on Android devices, you grant SWNG permission to access your contacts and/or media storage applications as part of the installation process. By granting us this access, you acknowledge and agree that we may store any and all contacts and/or media we access through your mobile device on SWNG’s servers solely for the purpose of providing and/or improving the Services. If you later decide to revoke this permission, you can do so by following the standard uninstall process and removing the mobile application from your device. Alternatively, on iOS devices, you can grant or revoke your consent at any time and prevent us from continuing to access your contacts or media storage application by changing the settings on your mobile device. You hereby authorize SWNG to access such components of your mobile device and to store any contacts and/or media accessed through such components on SWNG’s servers.
SWNG’S MOBILE APPLICATION(S) MAY ACCESS AND UPLOAD TO SWNG’S SERVERS YOUR CONTACT LIST ON YOUR MOBILE DEVICE WHEN YOU ENDEAVOR TO SEND OUT INVITATIONS TO YOUR CONTACTS TO JOIN THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT MEDIA AND TEXT MESSAGES MAY BE SENT FROM YOUR MOBILE DEVICE TO YOUR SELECTED CONTACTS IN CONNECTION THEREWITH, AND YOU ACCEPT SUCH TRANSMISSION AS A CONDITION OF USAGE.
Certain features and functions of the Services may be accessible only through a messaging platform, such as Facebook or Twitter. You may link your account for the Services with your third-party accounts for such messaging platforms, only to the extent permitted under the applicable terms and conditions that govern your use of each third-party account. You represent that if you allow us to access your third-party account (i.e., by linking it with your account for the Services), you are entitled to disclose your third-party account login information to us and/or grant us access to your third-party account without breach by you of any of the terms and conditions that govern your use of the applicable third-party account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third-party service providers. You acknowledge and agree that, by granting us access to any of your third-party accounts, we may access, make available and store any information, data, text, sound, photographs, graphics, video, messages, tags and/or other materials that you have provided to and/or stored in your third-party accounts relating to your use of our Services (collectively, “Third-Party Account Data”). Please note that if a third-party account or associated service becomes unavailable or our access to such third-party account is terminated by the third-party service provider, then the Third-Party Account Data for that third-party service may no longer be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIPS WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE DISCLAIM ANY AND ALL LIABILITY FOR INFORMATION THAT MAY BE PROVIDED BY SUCH THIRD-PARTY SERVICE PROVIDERS.
By using the Services, you agree that:
You will not create another account if we have already disabled your account, unless you have our written permission to do so;
You will not buy, sell, rent, or lease access to your SWNG account without our written permission;
You will not enable third parties to access your SWNG account; and
You will not log in or attempt to access the Services through unauthorized third-party applications or clients.
If you think that someone has gained access to your account, please immediately reach out to us at firstname.lastname@example.org.
9. Your License
SWNG grants you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Services. This license is for the sole purpose of letting you use and enjoy the Service’s benefits as authorized hereunder.
In short: You can only access and use the Services for your own personal, non-commercial uses; you do not have to pay us for your use of the license; you cannot pass this right to someone else; other people can also access and use the Services; and we have the right to remove your ability to use the Services.
Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.
You may not copy, modify, distribute, sell, or lease any part of the Services, nor may you reverse engineer or attempt to extract the source code of any Services, unless applicable laws prohibit these restrictions or you have SWNG’s written permission to do so.
10. Data Charges
You are responsible for any charges that you may incur in connection with using the Services, including text-messaging and data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Services.
If you change or deactivate the email address or mobile phone number that you used to create a SWNG account, you must update your account information within 72 hours to prevent us from sending to someone else messages intended for you.
11. Third-Party Services
If you use a service, feature, or functionality that is operated by a third party and made available through our Services (including any Service we may jointly offer with a third party), each party’s terms may govern the respective party’s relationship with you. SWNG is not responsible or liable for those third party’s terms or actions taken under the third party’s terms.
12. Modifying the Services and Termination
We’re relentlessly improving our Services and creating new ones all the time. That means we may add or remove features or functions, and we may also suspend or stop the Services altogether. We may take any of these actions at any time, and when we do, we may not provide you with any notice beforehand.
While we hope you remain a long-term user of our Services, you can terminate this Agreement at any time and for any reason by deleting your account or uninstalling the app from your device.
SWNG may also terminate this Agreement with you at any time, for any reason, and without advance notice. That means that we may stop providing you with any Services, or impose new or additional limits on your ability to use the Services. For example, we may deactivate your account due to prolonged inactivity, and we may reclaim your username at any time for any reason.
Regardless of who terminates this Agreement, both you and SWNG continue to be bound by Sections 2, 5, and 12-20 of this Agreement. Upon termination, all licenses and other rights granted to you in this Agreement will immediately cease.
You agree to indemnify, defend, and hold harmless SWNG, its shareholders, employees, affiliates, licensors, and suppliers from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to: (a) your access to or use of the Services; (b) your content; and (c) your actual or alleged breach of the terms of this Agreement. If you are agreeing to this Agreement on behalf of a business or other entity, this indemnity obligation applies to that business or other entity.
We try to keep the Services up and running and free of annoyances. But we make no promises that we will succeed.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE SWNG ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) ANY SWNG CONTENT, USER CONTENT, OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.
SWNG TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, FOR WHICH SWNG WILL NOT BE RESPONSIBLE.
IN SHORT: OUR SERVICES ARE NOT BESPOKE TO YOU. YOU ACKNOWLEDGE THAT THE SERVICES HAVE NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SERVICES MEET YOUR REQUIREMENTS.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SWNG AND OUR SHAREHOLDERS, EMPLOYEES, AFFILIATES, LICENSORS, AND SUPPLIERS, INCLUDING, FOR THE AVOIDANCE OF DOUBT, PLR IP HOLDINGS, LLC, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUES, BUSINESS, OR SAVINGS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, RECORDS, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON THE SERVICES; (C) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR CONTENT OR POSTS; (D) ANY ERRORS OR OMISSIONS IN THE SERVICES’ OPERATION; OR (E) ANY DAMAGE TO A USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY, EVEN IF SWNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SWNG’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED THE GREATER OF $50 USD.
IN SHORT: WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREAKING THESE TERMS OR OUR FAILING TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO AND BOTH WE AND YOU KNEW IT MIGHT HAPPEN. WE ARE NOT LIABLE FOR BUSINESS LOSSES. AS NOTED ABOVE, WE ONLY MAKE THE SERVICES AVAILABLE FOR YOUR PERSONAL, NON-COMMERCIAL USE. IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
YOU AGREE THAT, IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF SWNG'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY SWNG, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY SWNG.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE;
(B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR
(C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
16. Arbitration, Class Waiver, and Jury Waiver
FOR USERS OUTSIDE THE EU: PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SWNG, AND THEY LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Applicability of Arbitration Agreement. All claims and disputes arising out of, relating to, or in connection with this Agreement or the use the Services that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis, except that you and SWNG are not required to arbitrate any dispute in which either party seeks equitable relief for the allegedly unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with the terms of this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and SWNG. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the terms of this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and SWNG.
Waiver of Jury Trial. YOU AND SWNG WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SWNG are instead electing to have all claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly and are subject to very limited review by a court. If any litigation should arise between you and SWNG over whether to vacate or enforce an arbitration award or otherwise, YOU AND SWNG WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER OF ANY SERVICE CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes will be resolved in a court as set forth in Section 17.
Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against which the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
Small Claims Court. Notwithstanding the foregoing, either you or SWNG may bring an individual action in small claims court.
Arbitration Agreement Survival. This arbitration agreement will survive the termination of this Agreement and/or your relationship with SWNG.
17. Forum and Venue
To the extent the parties are permitted hereunder to initiate litigation in a court, both you and SWNG agree that all claims and disputes in connection with this Agreement or the use of the Services will be litigated exclusively in the United States District Court for the Southern District of New York. You and SWNG consent to the personal jurisdiction of such court.
If you are in the EU: you may bring a claim to enforce your consumer protection rights in connection with this Agreement or the use of the Services in the EU country in which you live.
18. Choice of Law
The laws of the State of New York, other than its conflict-of-laws principles, will govern all disputes between you and SWNG, but only to the extent they are not preempted by the Federal Arbitration Act.
If any term of this Agreement is found unenforceable, then that provision will be severed from this Agreement and will not affect the validity and enforceability of any remaining provisions.
20. Final Terms
This Agreement makes up the entire agreement between you and SWNG, and supersedes any prior agreements with respect to the subject matter hereof.
This Agreement does not create or confer any third-party beneficiary rights.
If we do not enforce a term or provision of this Agreement, such election will not be considered a waiver.
We reserve all rights not expressly granted to you.
SWNG welcomes comments, questions, concerns, or suggestions. Please send feedback to us by e-mailing us at email@example.com.
We reserve the right, in our sole discretion, to change this Agreement (“Updated Agreement”) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Agreement becomes effective. You agree that we may notify you of the Updated Agreement by posting it on the Services, and that your use of the Services after the effective date of the Updated Agreement (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement and any Updated Agreement before using the Services. The Updated Agreement will be effective as of the time of posting, or such later date as may be specified in the Updated Agreement, and will apply to your use of the Services from that point forward. This Agreement will govern any disputes arising before the effective date of the Updated Agreement.
Last Revised: June 1, 2016
Questions; Contacting Us; Reporting Violations.
Swing Technologies, Inc.,
1 Little West 12th Street, New York NY 10014
A Note About Children. We do not intentionally gather Personal Data from visitors who are under the age of 13. If a user of our Services under 13 submits Personal Data to us and we learn that the user is under 13, we will attempt to delete the information as soon as possible. If you believe that we might have any Personal Data from an individual under 13, please contact us at firstname.lastname@example.org.
International Data Transfer. SWNG, its Affiliates and service providers may transfer information that we collect about you, including Personal Data, from the country in which it was collected to other countries, including the United States where data protection laws may be less stringent than the laws in your country. If you are located in the European Union or another jurisdiction where laws governing the collection, use and transfer of personal data differ from U.S. law, please note that by using our Services, you consent to the transfer of your information, including your Personal Data, to a country or jurisdiction that does not have the same data protection laws as your jurisdiction.
Information You Provide to Us.
We will collect Personal Data from you, which may include your first and last name, username, e-mail and password when you create an account to log in to use our Services (“Account”). You may also voluntarily provide us with a photograph, phone number and/or other contact information when creating an Account. Some of the information you provide to us when creating an Account may be visible to other users of the Services.
If you use our Services on your mobile device, including through our mobile application(s), we may collect your phone number and the unique device id number.
If you agree to share your location with us (e.g., via the location settings on your mobile device), we may (with your permission) display your location with your image, and we may store and use that information to provide you with location-based information and advertising.
When you access our Services via a service provider that uniquely identifies your mobile device, we may receive this identification and use it to offer extended services and/or functionality.
Certain Services may require that we collect your phone number. We may associate that phone number with your mobile device identification information.
When you order Services from us, we will collect all information necessary to complete the transaction, which, depending on the Services ordered, may include your name, credit card information, billing information and shipping information.
We may retain information on your behalf, such as files and messages that you transmit via your Account.
If you provide us feedback or contact us electronically, we will collect your name and contact information, as well as any other content included in the communication, in order to send you a reply.
When you distribute content (text, moving or static images, messages, comments or any other kind of content) via our Services, the information contained in your distribution will be stored in our servers and other users will be able to see it, along with your profile image and any other information that you choose to make public on your public profile (“Profile”). The information that you provide in your Profile will be visible to others, including anonymous users of our Services. Of course, images you send privately to one or more users will not be visible to the rest of the community.
If you participate in a sweepstakes, contest or other promotion we operate, we may ask you for your contact information (e.g., to notify you if you win or not). We may also ask for your first and last name, and sometimes your address to verify your identity. In some situations, we may need additional information as a part of the entry process, such as your age or prize selection choice. These promotions are voluntary. We recommend that you read the rules for each promotion that you enter.
Information You Provide to Facebook and other Social Networking Sites.
The Services allow users to access their accounts with social networking services to interact with friends and to share content via such services. If you are simultaneously logged into the Services and a social networking service, when you click on “Connect with Facebook” or the Facebook logo (or a similar connection on another social networking service), you may be prompted to merge your profiles.
Conversely, if you are not registered as a user of the Services, and you click on “Sign in” using Facebook or another social networking service that we support, you will first be asked to enter your Facebook or social networking service credentials and then be given the option to register for the Services. In this case, we may receive information from Facebook or another social networking service to make it easier for you to create an Account and access content from your Facebook or social networking service connections.
Once you register with the Services and connect with Facebook or another social networking service you will be able to automatically post recent activity back to Facebook or the other social networking service. Any information that we collect from your Facebook or other social networking service account may depend on the privacy settings you have with that social networking service, so please consult the social networking service’s privacy and data practices. (You have the option to disable Facebook Connect at any time by logging into your Account and going to settings, clicking the Facebook logo and confirming your wish to disconnect the account).
Information Collected via Technology. Information Collected by Our Servers. To make our Services more useful to you, our servers (which may be hosted by a third party service provider) collect information from you, including your browser type, operating system, Internet protocol (“IP”) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session) or other device identifier, and/or a date/time stamp for your visit.
Log Files. As is true of most online services, we gather certain information automatically and store it in log files. This information includes, for visitors to our desktop or mobile websites, IP addresses, browser type, Internet service provider (“ISP”), referring/exit pages, operating system, date/time stamp, and clickstream data. We use this information to analyze trends, administer the Services, track users’ movements around the Services, gather demographic information about our user base as a whole, and better tailor our Services to our users’ needs. For example, some of the information may be collected so that when you visit the Services again, our system will recognize you and then serve advertisements and other information appropriate to your interests.
Pixel Tags. In addition, we may use “Pixel Tags” (also referred to as clear Gifs, Web beacons, or Web bugs). Pixel Tags are tiny graphic images with a unique identifier, similar in function to Cookies, that are used to evaluate users’ navigation on the web. In contrast to Cookies, which are stored on a user’s computer hard drive, Pixel Tags are embedded invisibly in websites. Pixel Tags also allow us to send e-mail messages in a format users can read, and they tell us whether e-mails have been opened to help us send messages that are of interest to our users. We may use this information to reduce or eliminate messages sent to a user.
Flash Cookies. When we post videos, third parties may use “local shared objects,” known as “Flash Cookies,” to store your preferences for volume control or to personalize certain video features. Flash Cookies are different from browser Cookies because of the amount and type of data and how the data is stored. Cookie management tools provided by your browser will not remove Flash Cookies. To learn how to manage privacy and storage settings for Flash Cookies, click here: http://www.macromedia.com/support/documentation/en/flashplayer/help/settings_manager07.html.
Mobile Services. We may also collect non-personal information from your mobile device if you have downloaded our application(s). This information is generally used to help us deliver the most relevant information to you. Examples of information that may be collected and used include your geographic location, how you use the application(s), and information about the type of device you use. In addition, in the event our application(s) crash on your mobile device, we will receive information about your mobile device model, software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our application(s). This information is sent to us as aggregated information and is not traceable to any individual and cannot be used to identify an individual.
Information Collected from You About Others.
If you decide to invite a third party to create an Account, we will collect your and the third party’s names, e-mail addresses, telephone numbers or other contact information in order to contact and follow up with the third party. You or the third party may contact us at email@example.com to request the removal of this information from our database. As part of your use of the Services, we provide you the opportunity to connect automatically with your friends.
We employ various techniques in order to facilitate friends finding each other on our Services, including offering contact importer tools to facilitate adding to your contacts (including Facebook Friends and contacts in your address book), so that you can more readily ask your contacts to join and communicate with you through the Services. With your permission, we will access your address book, call log and SMS log, and import your contacts’ names, e-mail addresses, phone numbers, image, geographic location and social network IDs to facilitate automatic connection with your friends.
We do this only for contact matching to help you and your friends find each other. Also, when you invite friends to the Services, we will ask your consent to access your address book and import your contacts names and phone numbers in order to facilitate the invitation. The communication that is sent to your friends will include header information so that it appears to come from you so that your friends know that you want to invite them to use the Services. We do not store any passwords you provide as part of the contact import process. We also collect some settings that help us to interpret your data, such as the language settings that you have established, and the phone’s carrier, mobile network code and mobile country code.
Location Information. If you have enabled location services on your mobile device, we collect your location information to display it to the recipients of your content. If you do not want this information collected by us, you can configure the location services on your phone so that we do not have access to your location information. If you do not want to display it for a specific image, you can remove location information prior to sharing the content.
Use of Your Personal Data
General Use. In general, we use Personal Data either to respond to requests that you make, or to aid us in serving you better. We use your Personal Data in the following ways:
To facilitate the creation of and secure your Account on our network;
To provide improved administration of our Services;
To improve the quality of your experience when you interact with our Services;
To send you a welcome e-mail to verify ownership of the e-mail address provided when your Account was created;
To send you administrative e-mail notifications, such as security or support and maintenance advisories; and
To send newsletters, surveys, offers, and other promotional materials related to our Services and for other marketing purposes.
Creation of Anonymous Data. We may create Anonymous Data records from Personal Data by excluding information (such as your name) that makes the data personally identifiable to you. We use this Anonymous Data to analyze request and usage patterns so that we may enhance the content and navigation of our Services. We reserve the right to use Anonymous Data for any purpose and disclose Anonymous Data to third parties in our sole discretion.
Third-Party Service Providers. We may share your Personal Data with third-party service providers: to provide you with the Services that we offer; to conduct quality assurance testing; to facilitate creation of Accounts; to provide technical support; and/or to provide other services on our behalf. These third-party service providers agree not to use your Personal Data other than to provide the services requested by Company.
Disclosure to Third Parties. We may enter into agreements with third parties with which we provide our Services (e.g., by way of co-branded or private-labeled services) and/or third parties that offer their own products and/or services through our Services (“Third-Party Companies”). A Third-Party Company may want access to Personal Data that we collect from its customers. As a result and with your consent we may disclose your Personal Data to a Third-Party Company; however, we will not disclose your Personal Data to any Third-Party Company for the Third-Party Company’s own direct marketing purposes, unless you have “opted-in” by following the instructions we provide to allow such disclosure. If you have opted-in to receive e-mail communications from a Third-Party Company and later wish to discontinue receipt of these e-mails, please contact the Third-Party Company directly to update your preferences. The privacy policies of these Third-Party Companies may apply to the use and disclosure of your Personal Data that we collect and disclose to such Third-Party Companies. Because we do not control the privacy practices of Third-Party Companies, you should read and understand their privacy policies.
Public Profile. Certain portions of the information you provide to us may also be displayed in your Profile. As an essential element of the Services, certain Personal Data you explicitly provide to us when you register or update your Profile is displayed on your Profile. By default, your Profile is for public viewing. Your images, posts, friends, and other content you post to the Services are also meant for public consumption. However, you may choose to only share images and posts with specific users designated by you. We may display content publicly shared by you on the Services, and further distribute it to a wider audience through third-party sites and services. Once displayed on publicly viewable web pages, that information can be collected and used by others. We cannot control who reads your posting or what other users may do with the information that you voluntarily post, so it is very important that you do not put Personal Data in your posts. Once you have posted information publicly, while you will still be able to edit and delete it on the Services, you will not be able to edit or delete such information cached, collected, and stored elsewhere by others (e.g., search engines).
Your Choices Regarding Your Information. You have several choices regarding use of information on our Services:
Cookies. If you decide at any time that you no longer wish to accept Cookies from our Services for any of the purposes described above, then you can instruct your browser, by changing its settings, to handle cookies as in any manner permitted by your browser. Consult your browser’s technical information. If you do not accept Cookies, however, you may not be able to use all portions of the Services or all functionality of the Services.
De-Linking Social Networking Services. If you decide at any time that you no longer wish to have any social networking account (e.g., Facebook or Twitter) linked to your Account, then you may de-link the social networking account in the “preferences” section in your Account settings. You may also manage the sharing of certain Personal Data with us when you connect with us through a social networking service. Please refer to the privacy settings of the social networking service to determine how you may adjust our permissions and manage the interactivity between the Services and your social media account or mobile device.
Changing or Deleting Your Personal Data. You may review, update, correct or delete the Personal Data in their Account by editing your Profile via the Service. If you completely delete all of your Personal Data, then your Account may become deactivated. We may retain an archived copy of your records as required by law or for legitimate business purposes.
Applications. You can stop all collection of information by the application(s) by uninstalling them. You may use the standard uninstall processes as may be available as part of your mobile device or via the mobile application marketplace or network.
Access Rights. The Act gives you the right to access information held about you. If you wish to exercise this right in accordance with the Act, please contact us at firstname.lastname@example.org
Security of Your Personal Data. We are committed to protecting the security of your Personal Data. We use a variety of industry-standard security technologies and procedures to help protect your Personal Data from unauthorized access, use, or disclosure. We also may require you to enter a password to access your Account information. Please do not disclose any such Account password to unauthorized people. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while we use reasonable efforts to protect your Personal Data, we cannot guarantee its absolute security.