SwayDM | Terms of Use

Acceptance of these Terms of Use
About SwayCash
Participating in Sway as an Eligible Vendor
Participating in Sway as a Member
User Content
License
Content Disclaimer
Feedback
Acceptable Use
Proprietary Information
Indemnity
Disclaimers; No Warranties
Limitations of Liability
Governing Law
Arbitration
Process of Arbitration
Arbitration Fees
Class Action Waiver
Digital Millennium Copyright Act
Privacy Policy
Miscellaneous
Contact Information

Welcome to sway.dm (the “Site”) provided to you by Krier Godfrey & Grassbaugh, Inc., a Delaware corporation d/b/a SwayDM (“SwayDM,” “we,” “us,” or “our”), which includes all related web sites, networks, products and services provided by us and on which a link to these Terms of Use & Service are displayed (collectively, our “Service”). PLEASE READ THESE TERMS OF USE AND SERVICE AGREEMENT (“Terms”) CAREFULLY. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND SWAYDM.

These Terms govern your use, and SwayDM’s provision to you of any product or service, including all related web sites, networks, products and services provided by us and on which a link to these Terms are displayed (collectively, our “Services”).

SwayDM reserves the right, at its discretion, to update or change these Terms on a going-forward basis at any time, with or without notice, by posting updated or changed Terms to the Site. It is your responsibility to check these Terms periodically for changes. Acceptance of updates or changes to these Terms is required to continue use of the Service and the Site.

For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose. SwayDM makes no representation as to the completeness or accuracy of any information on the Site. The Site may contain inaccurate, incomplete, or out of date information.

These Terms include an arbitration agreement that governs any disputes between you and us. In arbitration, there is less discovery and appellate review than in court. This arbitration agreement and other provisions will:

eliminate your right to a trial by jury to the extent allowable under applicable law; and
substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings in arbitration and litigation.

You agree that we may provide updates, notices, disclosures and amendments to these Terms, and other information relating to SwayCash by electronic means, including posting such information and materials online at sway.dm.

1. Acceptance of these Terms of Use

By accessing the Site and/or by creating a SwayDM account on the Site, you agree to and accept these Terms and any additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that SwayDM may post on or link to the Site (the “Additional Terms”), including our Privacy Policy. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

BY ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS; YOU ARE NOT A PERSON BARRED FROM USING THE SITE OR SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION; YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OR YOURSELF OR THE ENTITY YOU REPRESENT; YOU MUST BE AT LEAST THIRTEEN (13) YEARS OLD TO USE THE SITE OR ANY SERVICES PROVIDED BY US; AND IF YOU ARE A USER UNDER THE AGE OF EIGHTEEN (18) YEARS OLD, YOU HAVE REVIEWED THESE TERMS WITH YOUR PARENT OR LEGAL GUARDIAN AND HE OR SHE AGREES TO THESE TERMS AND OUR PRIVACY POLICY ON YOUR BEHALF AND TAKES FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THIS AGREEMENT.

IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICES OR THE SITE.

1.1 Third Party Policies

Certain aspects of the Services may be provided by one or more third parties. Such third parties may have their own policies (collectively, “Third Party Policies”) that apply to your use of the Site or the Service. BY YOUR USE OF OUR SITE OR SERVICES YOU AGREE TO ANY THIRD-PARTY POLICIES THAT MAY APPLY. Nothing in these Terms is intended to modify or limit such Third-Party Policies.

SwayDM may provide tools through the Services that enable you to export information, including your User Content, to third party services, including through features that allow you to link your account on SwayDM with an account on the third-party service, such as Twitter or Facebook. By using these tools, you agree that SwayDM may transfer such information to the applicable third-party service. Such third-party services or links are not under SwayDM’s control, SwayDM is not responsible for their use of your exported information and expressly disclaims all liability resulting from your use of third-party services.

1.2 Termination

If you violate any provision of these Terms, your permission to use the Services and the Site may be altered, suspended, or terminated by SwayDM. SwayDM, in its sole discretion, may terminate or suspend your User account or access to the Site or the Service at any time, with or without notice. SwayDM also reserves the right to modify or discontinue the Services at any time (including, without limitation, by limiting or discontinuing certain features of the Site or the Service) without notice to you. SwayDM has no liability whatsoever on account of any change to the Services or the Site, or from any suspension or termination of your access to or use of the Site or the Service. You may terminate your account at any time by contacting customer service at support@sway.dm.

2. About SwayCash

SwayCash is our way of connecting vendors to consumers and recognizing and thanking consumers for their loyalty to such businesses. SwayCash is digital value that can be earned and redeemed by Members and Eligible Vendors. How SwayCash may be earned and redeemed is discussed throughout these Terms.

2.1 SwayCash has no monetary value.

SwayCash is intended to be acquired and consumed within the SwayDM platform. SwayCash has no monetary value and your wallet is not a cash account or any equivalent thereto. SwayCash is not a currency or any type of property.

2.2 SwayCash may not be used outside of the SwayDM platform.

SwayCash is provided to Eligible Vendors as discussed in Sec. 3, below. SwayCash is offered by an Eligible Vendor at its discretion, but it may not be sold or traded in exchange for money or virtual currency. Eligible Vendors may offer SwayCash under terms that they set. When you receive SwayCash from an Eligible Vendor, you can exchange it for goods, services, or discounts offered by that Eligible Vendor by using the SwayDM mobile application and/or the SwayDM web application (collectively, the “SwayDM App”).

For Eligible Vendors, as defined below, SwayCash is available to purchase and then made available to Members. For Members, SwayCash can be earned from Eligible Vendors and redeemed accordingly for such things as discounts offered by such Eligible Vendors, charitable contributions and other redemption opportunities. Eligible Vendors typically will issue SwayCash to Members they designate through its marketing activities. Not all Eligible Vendors will value SwayCash similarly and for details or transactions, please contact the Eligible Vendor directly to confirm how SwayCash is valued and redeemed by them. To find an Eligible Vendor near you, please visit the SwayDM App.

3. Participating in SwayDM as an Eligible Vendor

3.1 Eligibility

3.1.1

SwayDM welcomes organizations of all sizes and structures to its platform. In order to qualify as an Eligible Vendor, an organization must be engaged in a market area that we currently serve; it must agree to these Terms; and it must be an organization that does not promote, encourage, support, or sponsor (1) any unlawful or illegal activity, and it may not (2) threaten, incite, or promote violence, terrorism, or other serious harm, including harm or abuse directed toward children.

3.2 Joining Sway

3.2.1

To join Sway as an Eligible Vendor, a business may contact SwayDM through https://app.sway.dm/register/vendor the SwayDM App SwayDM strategists assist Eligible Vendors with marketing activities and general usage of SwayDM to accomplish their objectives.

3.3 Earning, Purchasing, and Offering SwayCash

3.3.1

As part of the welcome process, SwayDM may offer a small amount of SwayCash to the Eligible Vendor to be used in accordance with these Terms and any other terms or guides provided by SwayDM. Eligible Vendors may purchase additional SwayCash in the SwayDM App.

3.3.2

Once an Eligible Vendor receives SwayCash, it may use such SwayCash in furtherance of the digital marketing campaign that is established by the Eligible Vendor and its SwayDM strategist. Eligible Vendors can use SwayCash by sending out messages to Members for marketing purposes through SwayDM.

3.3.3

Eligible Vendors are responsible for ensuring that all messaging is done in accordance with all applicable consumer protection laws, rules, and regulations.

3.4 SwayCash Redemption

3.4.1

Eligible Vendors are afforded the ability to set the terms of the redemption of SwayCash. SwayDM will provide a set of suggested considerations but Eligible Vendors are responsible for setting the terms and abiding by them. SwayDM will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with transactions or interactions with Eligible Vendors.

4. Participating in SwayDM as a Member

4.1 Joining

4.1.1

To join SwayDM as a Member, go to our website or the SwayDM App and follow the prompts to create an account. You will be required to provide the following information: First and last name, email address and password. All information provided is handled in accordance with our Privacy Notice.

4.2 Earning SwayCash

4.2.1

When you join SwayDM, you automatically are provided with a digital Sway cash balance account, accessible through the app.

4.2.2

The SwayCash available to you through SwayDM is based on the amount of SwayCash that you earn. You can earn SwayCash by interacting with marketing messages sent by Vendors on SwayDM. SwayCash is accrued and stored in your wallet, available in the SwayDM App, and it may be redeemed with participating Eligible Vendors. SwayDM may offer additional ways to earn SwayCash, through bonuses and other opportunities, and the terms of those opportunities will be addressed elsewhere.

4.3 Redeeming SwayCash

4.3.1

Once you have earned SwayCash, you may redeem it in accordance with the Eligible Vendor’s redemption terms.

4.3.2

Members participating in SwayDM’s rewards program agree and acknowledge that, while your SwayCash may be redeemable for discounts at Eligible Vendors, SwayCash holds no monetary value.

4.3.3

Purchases and other transactions that include the entering of a Members’ financial information that occur at or with Eligible Vendors, are not operated, owned, or controlled by SwayDM, and SwayDM makes no representation or warranty regarding anything surrounding any Eligible Vendor’s services, products, or transactions.

4.3.4

SwayDM expressly disclaims any liability for Eligible Vendor’s services, products, transactions, or other Members interactions. Eligible Vendors will have their own terms regarding their products, services, and transactions, and Members are solely responsible for their actions and compliance with the terms offered by Eligible Vendors. SwayDM will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with transactions or interactions with Eligible Vendors.

5. User Content

Certain features of the Service may permit you to upload, share, or otherwise disclose content, including messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “User Content”). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party.

You hereby represent and warrant that your User Content does not violate our Acceptable Use policies contained in these Terms, and that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content.

You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by SwayDM. SwayDM is not obligated to backup any of your User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content.

6. License

You hereby grant (and you represent and warrant that you have the right to grant) to SwayDM an irrevocable, nonexclusive, royalty-free, worldwide license to transfer, modify, store, reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in order to deliver the Services and for other purposes disclosed in these Terms and the Privacy Policy. Any such use of your User Content by SwayDM will be without any compensation paid to you. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

7. Content Disclaimer

SwayDM does not and cannot review all User Content, communications or materials on our Site. SwayDM is not responsible for the User Content. SwayDM is under no obligation to edit or control User Content that you or other users post or publish, and SwayDM will not be in any way responsible or liable for any User Content.

You acknowledge that by providing you with the ability to view and distribute user-generated content on the site, SwayDM is acting only as a conduit for such distribution and does not have any obligation or liability relating to any User Content on the Site.

However, SwayDM reserves the right to block, edit, screen, or remove User Content, communications or materials that it determines to be (i) abusive, defamatory, or obscene; (ii) fraudulent, deceptive, or misleading; (iii) in violation of a copyright, trademark or other intellectual property right of another; or (iv) offensive or otherwise unacceptable in SwayDM’s sole discretion.

We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action in our sole discretion. Further, SwayDM does not monitor nor control what users may do with User Content that you share. As such, you should anticipate that the other users may freely share any message or content you send, post, or upload, and therefore you acknowledge and undertake any and all risk of public disclosure of any such User Content.

You as a user agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against SwayDM and other users with respect to User Content and the transmission and handling of same. SwayDM expressly disclaims any and all liability in connection with User Content.

8. Feedback

If you provide feedback to SwayDM regarding the Services (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize SwayDM to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to SwayDM a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose. SwayDM provides no assurances that any reported problems will be resolved by SwayDM even if SwayDM elects to provide a response or information with the goal of addressing a problem.

9. Acceptable Use

You agree to use the Services for the purposes described on the Site and for no other purpose. Without limiting the foregoing, you specifically agree not to: (i) engage in any illegal purpose, or in violation of any local, state, national, or international law; (ii) send, post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; (iii) send, post, upload, or distribute any User Content or other content that includes personal health information or contains any sensitive personal information; (iv) violate, or encourage others to violate, our rights or the rights of any third parties, including by infringing or misappropriating third party intellectual property rights or by taking any action inconsistent with our ownership rights in the Service or the ownership of authors of User Content; (v) transfer, publish, disclose, display or otherwise make available any of our Services or User Content you receive from others to any third party, except as necessary for you to use the Services and as permitted herein for your personal, non-commercial purposes; (vi) reverse engineer, decompile, translate, adapt or disassemble any of our Services in an attempt to reconstruct or discover the design, source code or algorithms thereof for any other purpose, except and only to the extent expressly permitted by law; (vii) remove, delete or alter any trademarks or any copyright, trademark, patent or other intellectual property rights notices from any of our Services or the User Content you receive from others; (viii) disable or circumvent features that prevent or limit use or copying of any content; (ix) perform any fraudulent activity including money laundering, credit card scams, impersonating any person or entity, claiming false affiliations, accessing the Services accounts of others without permission, or falsifying your name, age, date of birth or other personal information; or (x) interfere with the operation of the Site or the Services or any User’s enjoyment of the Site or the Service, including by: uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; making unsolicited offers or advertisements to other Users of the Service; attempting to collect without authorization of SwayDM, Site information, or personal information about users or third parties without their consent, with or without the use of web-scraping or data mining; or by interfering with or disrupting any networks, equipment, or servers connected to or used to provide access to the Site or the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers.

10. Proprietary Information

The Site and the provided Services, and all related information and data, is owned and operated by SwayDM. All rights are reserved. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, and all other elements of the Site or the Services (the “Materials”) provided by SwayDM are proprietary information of SwayDM, and subject to all applicable intellectual property rights and protective laws.

All Materials contained in the Services are the property of SwayDM or our third-party licensors. Except as expressly authorized by SwayDM, you may not make use of the Materials for any commercial or non-commercial purposes.

SwayDM reserves all rights to the Materials not granted expressly in these Terms. You may not modify any Materials or information displayed on or that can be downloaded from the Site, or reproduce or publicly display or distribute, or otherwise use any such information or Materials for any commercial purposes.

11. Indemnity

You agree that you will be responsible for your use of the Site and the Service, and you agree to defend, indemnify, and hold harmless SwayDM and each its officers, directors, employees, consultants, affiliates, subsidiaries, agents, and distributors from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Site or Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party or other user. SwayDM reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

12. Disclaimers; No Warranties

THE SITE, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE OR THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED.
SWAYDM SPECIFICALLY, AND WITHOUT LIMITATION, DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

SWAYDM DOES NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY SERVICE, MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING SWAYDM OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS.

YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE OR THE SERVICE, YOUR DEALINGS WITH OTHER USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND ANY USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINED MATERIALS OR CONTENT THROUGH THE SITE OR THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND SWAYDM, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY (INCLUDING YOUR PERSONAL PROPERTY USED IN CONNECTION WITH THE SITE OR THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SITE OR THE SERVICE. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

13. Limitation of Liability

IN NO EVENT WILL SWAYDM BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT SWAYDM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF SWAYDM TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SITE OR THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE OR THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO SWAYDM FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE MONTHS PRIOR TO THE CLAIM OR (ii) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14. Governing Law

These Terms are governed by the laws of the State of Ohio without regard to its conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and SwayDM agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Licking County, Ohio for the purpose of litigating all such disputes. SwayDM operates the Services from its offices in Licking County, Ohio and it makes no representation that Materials included in the Services are appropriate or available for use in other locations.

15. Arbitration

You agree that any dispute, including but not limited to any controversy or claim arising out of or relating to these Terms (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after termination of these Terms), or the determination of the scope or applicability of Arbitration, shall be governed solely by the Federal Arbitration Act (the “FAA”). If you and SwayDM cannot resolve a dispute informally, any dispute asserted by either party will be resolved only by binding Arbitration. By agreeing to Arbitration, both you and SwayDM understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes. BY AGREEING TO SETTLE ALL DISPUTES BY ARBITRATION, YOU WAIVE YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
SwayDM and you agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.

Any arbitration between you and SwayDM will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting SwayDM.

16. Process of Arbitration

A party who intends to seek Arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). SwayDM’s address for Notice is: support@sway.dm. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or SwayDM may commence an Arbitration proceeding. During the Arbitration, the amount of any settlement offer made by you or SwayDM must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, SwayDM will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by SwayDM in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000, whichever is greater.

17. Arbitration Fees

Any arbitration hearings will take place at a location to be agreed upon in Licking County, Ohio provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. In the event of a dispute, and unless otherwise prohibited by law or expressly noted herein, each party will bear their own attorney’s fees and other costs.

18. Class Action Waiver

YOU AND SWAYDM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT, OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT ON BEHALF OF THE GENERAL PUBLIC, OTHER SWAYDM USERS, OR OTHER PERSONS. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY, AND MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THIS WAIVER OF CLASS ACTION AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION SECTION.

19. Digital Millennium Copyright Act

SwayDM complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact SwayDM’s Designated Agent at the following: support@sway.dm

Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of the material that you claim is infringing and where it is located on the Service; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

20. Privacy Policy

By accepting these Terms and by your use of our Site and/or Services, you consent to the collection and use of your personally identifiable information about your location in accordance with our Privacy Policy. You acknowledge that you have read and understood our Privacy Policy. The SwayDM Privacy Policy, and any related Additional Terms, is incorporated by reference into, and made a part of, these Terms.

By using the Service, you consent to receive electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that SwayDM sends to you electronically will satisfy any legal communication requirements, including if any such communications be in writing.

When you provide your email address or other contact information to us, you agree to subscribe to newsletters, marketing, promotional or sponsored materials and other information we may send which may take a variety of forms and methods inclusive of, but not limited to, electronic communications such as email and SMS/text messaging.

Receipt of such sponsored material may create additional fees and charges with your mobile or data provider. You are responsible for all such costs. However, you may opt-out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email or text message we may send.

21. Miscellaneous

These Terms, together with the Privacy Policy and any Additional Terms, constitute the entire and exclusive understanding and agreement between you and SwayDM regarding your use of and access to the Service.

You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. SwayDM may assign these Terms at any time without notice.

The failure to require performance of any provision will not affect SwayDM’s right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of particular provisions. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration.

22. Contact Information

You may contact SwayDM regarding our Site or Services by emailing us at: support@sway.dm

SwayDM's Terms of Use