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 Service. Nothing in these Terms is intended to modify or limit such Third Party Policies. These Terms only apply to the Services to the extent actually developed, distributed, licensed and supported by or on behalf of SwayDM.
PLEASE READ THE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF USE. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICES.
You acknowledge and agree that, as provided in greater detail in the Terms of Use:
- your use of the Services may be subject to separate third party terms of use/service and fees, including without limitation, certain Third Party Policies;
- you consent to the collection and use of your personally identifiable information and information about your location in accordance with the SwayDM Privacy Notice and the privacy policies of third parties included within the Third Party Policies;
- the Services are provided “as is” without warranties of any kind and SwayDM’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THESE TERMS OF USE, YOU AND SWAYDM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement below for the details regarding your agreement to arbitrate any disputes with SwayDM;
- access to certain features of the Services may require access to information about the location of your device; and
- by creating an account on our Services or otherwise accessing, contributing or activating content on the Service, 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.
1. SwayDM Services
The Services, including the Site, are owned by SwayDM and/or its providers. Your rights to use the Services are limited as set forth in these Terms. The Services allow you, as a User, to control who and on what terms you may engage with other registered Users of the Services. There are two different types of Users and you may potentially qualify as one or both based upon your use of the Services and registration status.1.1
“Payers” register through the Site to find and reach out to other Users whom they may wish to communicate through the Services. Payers’ use of the Services may be subject to the additional terms agreed at the time of their registration.1.2
“Earners” are approved by SwayDM and registered to receive and selectively view, respond, ignore, or block message requests from Payers. Earners set up a profile on the Site, which includes their messaging prices ($1.00 to view and $2.00 to respond). When an Earner receives a message request from a Payer, the Earner decides whether and how to engage and gets paid based on whether they choose to view or respond to the message. Earners’ use of the Services may be subject to the additional terms agreed at the time of their registration.2. User Content
2.1 User Content Generally
Certain features of the Service may permit you to send messages or, if supported by the Services now or in the future, post or publish other content, including messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “User Content”).2.2 Limited License Grant
By your use of the Services, you grant SwayDM a perpetual, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, including User Content that may include aspects of your individual persona (name, image, likeness, etc), in any media formats and through any media channels (now known or hereafter developed) in order to deliver the Services and for other purposes disclosed in these Terms and the Privacy Notice. Any such use of your User Content by SwayDM may be without any compensation paid to you.2.3 Limited License Grant to Other Users
By sending, posting, or sharing User Content with another User of the Service, and subject to the Terms herein, you hereby grant that User a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, license to (i) access and use such User Content, including User Content that may include aspects of your individual persona (name, image, likeness, etc), through the ordinary use of the provided functionality of the Service; and (ii) use, reproduce, distribute, and publicly display the User Content, in any and all media (for example, on social media platforms), whether now known or hereafter invented or devised.2.4
You recognize that, like other operators of direct messaging platforms, SwayDM does not monitor nor control what Users may do with User Content that you send using software or other tools beyond the functionality provided on the Site. As such, you should anticipate that the other User may freely share any message or content you send, post, or upload and acknowledge and undertake the risk that any such content may not remain private between you and the other User.2.5 User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize SwayDM and Users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 2 and in the manner set forth on the Site and in these Terms;
- your User Content, and use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) violate, or encourage others to violate, rules or regulations of the NCAA or other association, group, authority, or organization; and
- you are 13 years of age or older and all personal information you provide is accurate.
2.6 User Content Disclaimer
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 User Content. SwayDM may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in SwayDM’s sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Services you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. If you are a Payer, you acknowledge and agree that there is no warranty with respect to Earner responses, including the length and content of said responses. Earners have no obligation to review or respond unless they indicate that they will either review or respond. Additionally, the Earner may close out any message thread at any time. You 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. If notified by a User or content owner that User Content allegedly does not conform to these Terms, SwayDM may investigate the allegation and determine in its sole discretion whether to remove the User Content, which SwayDM reserves the right to do at any time and without notice.3. Participating on the Site as a Payer
3.1 Fees
The price for each message, whether viewed or responded to, is displayed on the Earner’s profile page and when Payers send the message. As a Payer, you agree to pay all amounts due in accordance with the payment terms in effect at that time. Any refunds are solely at the discretion of SwayDM.3.2 Currency
All transactions are in U.S. dollars unless otherwise specified at point of purchase.3.3 Payer Wallets
In order to send payment, Users must create a Payer Wallet. Before you can send a message to an Earner, you must also have the stated minimum funds, currently $3.00 USD, in your Payer Wallet. You acknowledge that Payer Wallet are operated by a third party payment provider, Stripe, and that SwayDM does not operate, own, or control Stripe. While you may enter payment card and other financial transaction information on an interface screen available from the SwayDM Site, your use of your payment card to fund your Payer Wallet is governed by your agreement with and the privacy policy of Stripe, not these Terms. See the terms and conditions set forth at Stripe.com for more information.3.4 Payment to Earners
Payments earned by Earners will be subject to any applicable SwayDM fees set forth in your account registration as well as any applicable third party processing fees.3.5 Payment Questions
If you have a question about payment or your Payer Wallet, please contact us at support@sway.dm. We have the sole discretion to determine how billing disputes between us will be resolved.4. Participating on the Site as an Earner
4.1 Applying to be an Earner
SwayDM reserves the right to invite, accept, or deny any individual to be an Earner based on SwayDM’s business judgement. Although Earners are not employees, SwayDM is guided by its policy against non-discrimination of any kind based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status such as disability, age, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situation.4.2 Registering as an Earner
In order to participate as an Earner, you must register. In registering, you agree to provide true, accurate, and complete information about yourself. You further agree to promptly update such information to keep it true, accurate, and complete. If you do not do so, or we reasonably believe you have not done so, we have the right to suspend or terminate your account and your use of the Services. You agree not to create an account using a false identity, on behalf of another person, or if you (and your parent or legal guardian) have previously been removed or banned from our Site. You are responsible for maintaining the confidentiality of your Site account information, including your username and password. You are responsible for all activities that occur on or in connection with your Site account and you agree to notify us immediately of any unauthorized access or use of your Site account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Site account.4.3 Earners between age 13 and age 16
You must be at least 13 years old to register as an Earner. Earners who are under 16 years old, may register only through a parent or legal guardian who, by registering, represents and warrants that: (A) he or she is the parent or legal guardian of the Earner and agrees to these Terms; (B) neither the parent or legal guardian nor the Earner is barred from using our Site under the laws of the United States, the place of residence of the parent, legal guardian, or Earner, or any other applicable jurisdiction; and (C) he or she is responsible for complying with all applicable laws and regulations relating to Earner’s participation on our Site and will fully indemnify SwayDM for any failure to do so.4.4 Promoting Your SwayDM Profile.
You may, but are not required, to share your SwayDM profile link anywhere people find you online – and encourage them to “SwayDM” you. You may, but are not required to, provide SwayDM with certain promotional materials that may be used to introduce you to the platform. The materials we are currently accepting for promotion are: (i) high-resolution image, (ii) Site biographical information, (iii) a promotional message letting Users know what kind of content you are most interested in receiving. We may, at our discretion, request additional materials from you for our use to promote you on or in connection with our Site or on any social media platform or third party website. Any other materials or photos of or concerning you that you approve for our use will also be governed under these Terms.4.5 Earner Content
Users of our Site may request that you read or respond to messages that they send to you. It is your choice whether to agree to read or respond. If you agree to read or respond to the message, the User will be charged according to your rate structure. SwayDM retains the right, in its sole discretion, to cancel any request from a User. In such an event, no payment will be made to you for any declined, cancelled, or unfulfilled request. You have the sole discretion, subject to these Terms, over the content of any responses that you choose to send to a User. However, you are encouraged to exercise care in determining the length and content of your response. If your responses are flagged to SwayDM, we may discuss with you an appropriate adjustment in the payment made to you. Content created by Earners is defined as User Content and is subject to the User Content section found in these Terms.4.6 Earner Fees and Payment
4.6.1 Review and Messaging Fee Structure
You set your own price for reading or responding to messages sent to you through the Site.4.6.2 Payments to Earners
Payments that you earn will be subject to any applicable SwayDM fees as set forth in these Terms and any applicable third party processing fees.4.6.3 Fee Split with SwayDM
Earners will receive at least 80% of the fee paid by the User with additional amounts paid to Earners subject to the discretion of SwayDM. The fee split is subject to change at SwayDM’s discretion, effective upon notice, which may include notice by posting revised Earner Terms.4.6.4 Payment from SwayDM
In order to receive payment, you must have an Earner Wallet. You acknowledge that while your Earner Wallet may be viewable by you on the Site, the funds that comprise the Earner Wallet are operated by a third party payment provider, Stripe, and that SwayDM does not operate, own, or control Stripe. While you may enter financial information on an interface screen available from the SwayDM Site, your use is governed by your agreement with and the privacy policy of Stripe, not these Terms. See the terms and conditions set forth at Stripe.com for more information.4.6.5
If any funds are available, you may view them in your Earning Balance and you may transfer them to your bank account by submitting a payment request. Your request will be processed by Stripe. A minimum withdrawal balance may apply.4.6.6
If you do not provide Stripe with all required information, you may not be able to receive the payments due to you. SwayDM will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide such information.4.6.7
Notwithstanding anything to the contrary contained in these Terms, if SwayDM, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with our Site, you acknowledge and agree that we may withhold, delay, or seek repayment of any payments we believe, in our sole discretion, are related to the violation.4.7 Relationship with SwayDM
4.7.1
You and SwayDM agree that the relationship between the parties is solely an independent contractor relationship. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of SwayDM, and will not represent yourself as such. As an independent contractor using our platform to provide certain services to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance under these Terms and you acknowledge and agree that we do not control those elements of your performance. You also retain the option to accept, decline, or ignore any User request. We have no right to, and will not, control the manner or determine the method of accomplishing your performance. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business.4.7.2
You represent and warrant that as between SwayDM and you, you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on our Site under these Terms.4.7.3
You will use your own equipment to perform your obligations under these Terms.4.7.4
You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.4.7.5
Your relationship with SwayDM is non-exclusive, meaning that you may provide similar services to third parties, including SwayDM’s competitors, and you may engage in other business or employment activities. Similarly, we can and do engage third parties to provide services similar to those that you may provide under these Terms.5. Digital Millennium Copyright Act
5.1 DMCA Notification
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.5.2 Required Content of DMCA Notice
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- 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
- 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.
6. 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:6.1
Engage in any illegal purpose, or in violation of any local, state, national, or international law or the rules or regulations of the NCAA or any other association, group, authority, or organization;6.2
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;6.3
Send, post, upload, or distribute any User Content or other content that includes personal health information or contains any sensitive personal information;6.4
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. Without limiting the foregoing, you agree not to (i) 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; (ii) copy, modify, tamper with, alter, create derivative works of, sublicense, sell, lease, loan, rent, convey, pledge as security or otherwise encumber, or act as a service bureau with respect to any of our Services or User Content you receive from others; (iii) 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; (iv) 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; and (v) disabling or circumventing features that prevent or limit use or copying of any content;6.5
Interfere with the operation of the Services or any User’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other Users of the Service, (iii) attempting to collect, personal information about Users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;6.6
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;6.7
Attempt to do any of the prohibited acts described in this Section 5, or assist or permit any persons in engaging in any of the acts described in this Section 5.7. Third Party Services and Linked Websites
SwayDM may provide tools through the Services that enable you to export information, including 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, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that SwayDM may transfer such information to the applicable third party service. Such third party services are not under SwayDM’s control, and SwayDM is not responsible for their use of your exported information. The Services may also contain links to third party websites. Such linked websites are not under SwayDM’s control, and SwayDM is not responsible for their content.8. Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission to use the Services will terminate automatically. Additionally, SwayDM, in its sole discretion, may terminate your User account on the Service, if applicable, or suspend or terminate your access to the Services 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 Service) without notice to you. SwayDM will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at support@sway.dm. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Services incurred prior to termination.9. 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.10. Privacy Notice; Additional Terms
10.1 Privacy Notice
Please read the SwayDM Privacy Notice (follow the links at the bottom of sway.dm carefully for information relating to SwayDM’s collection, use, storage and disclosure of your personal information. The SwayDM Privacy Notice, which includes our Cookie Notice, is incorporated by reference into, and made a part of, these Terms.10.2 Additional Terms
Your use of the Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that SwayDM may post on or link to on the Services (the “Additional Terms”), such as end User license agreements for any downloadable applications that SwayDM may offer, or rules applicable to particular features or content on the Service. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.11. Modification of these Terms of Use
SwayDM reserves the right, at its discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such modified Terms of Use. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.12. Ownership; Proprietary Rights
The Services is owned and operated by SwayDM. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, Software, services, and all other elements of the Services (the “Materials”) provided by SwayDM are protected by all relevant intellectual property and proprietary rights and applicable 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. SwayDM reserves all rights to the Materials not granted expressly in these Terms.13. Indemnity
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless SwayDM and each of their officers, directors, employees, consultants, affiliates, subsidiaries, agents, and distributors (collectively, the “SwayDM Entities”) 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 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. 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.14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SWAYDM ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, 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. THE SWAYDM ENTITIES DO 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 SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE SWAYDM ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS TERMS OF USE. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND THE SWAYDM ENTITIES, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY (INCLUDING YOUR PERSONAL PROPERTY USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
15. Limitation of Liability
IN NO EVENT WILL THE SWAYDM ENTITIES 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 THE SWAYDM ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SWAYDM ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS TERMS OF USE, 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 OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS TERMS OF USE 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 OF USE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law
These Terms of Use is governed by the laws of the State of Ohio without regard to 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.17. General
These Terms of Use, together with the Privacy Notice and any other agreements expressly incorporated by reference, constitute the entire and exclusive understanding and agreement between you and SwayDM regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. 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.18. Relationship of the Parties
You agree that no joint venture, partnership, employment, or agency relationship exists between you and SwayDM as a result of these Terms or use of the Site. SwayDM's performance of these Terms is subject to existing laws and legal process, and nothing contained herein is in derogation of SwayDM's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by SwayDM with respect to such use.19. Dispute Resolution and Arbitration
19.1 Generally
In the interest of resolving disputes between you and SwayDM in the most expedient and cost effective manner, you and SwayDM agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. 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. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of 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 the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TERMS OF USE, YOU AND SWAYDM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.19.2 Exceptions
Notwithstanding Section 18.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right 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.19.3 Arbitrator
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.19.4 Notice; Process
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.19.5 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.19.6 No Class Actions
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. Further, unless both you and SO SwayDM A agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.19.7 Enforceability
If the entirety of this Section 18 is found to be unenforceable, then parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.20. Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Notice. Please read our Privacy Notice 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 that such communications be in writing.21. Contact Information
The services hereunder are offered by SwayDM. You may contact us by emailing us at: support@sway.dm.