August 29, 2016

Terms of Use

Welcome to SWIRVE, operated by SWIRVE, LLC, (“SWIRVE”, “us”, “we”, “our”).

 

Last Updated on: August 29th, 2016

 

Welcome to SWIRVE. By accessing the SWIRVE application you agree to be bound by these Terms of Use (the “Agreement”), whether or not you create a SWIRVE account or make subsequent use of the Service. Before you create an account or use the Service, please read these Terms of Use carefully, as well as the terms of our Privacy Policy [http://www.swirve.com/privacypolicy], which also forms part of this Agreement.

 

If you do not accept and agree to be bound by the terms of this Agreement including those of the Privacy Policy, please do not use the Service.

 

If you have any questions or concerns regarding this Agreement, the Service or any information provided in or related to the Service, please contact contact@swirve.com.

 

ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SWIRVE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

 

  1. About SWIRVE. Swirve is a behavior-driven multimedia content sharing and discovery platform currently available on iOS (in the photo/video category)..

 

  1. Your Acceptance of this Agreement is Legally Binding.

 

  1. This Agreement is an electronic contract that establishes the legally binding terms you must accept to be bound by in order to use the Service. This Agreement includes the Privacy Policy [http://www.swirve.com/privacypolicy], as well any terms and conditions that may govern the acceptance or purchase of any in-app feature, product or additional service. Such terms and conditions as disclosed and agreed to by you will form part of this Agreement and the Service as it relates to your account.

 

  1. By accessing or using the Service, you accept this Agreement and agree to its terms and conditions as they may be amended from time to time and agree to have access to, or receive all notifications concerning this Agreement, the Service, and your account delivered to you in electronic form.

 

  1. You may print a copy of this Agreement for your records. To receive a hard copy of this Agreement, please contact us at [contact@swirve.com].

 

  1. This Agreement is current as of the date last modified. SWIRVE may modify or amend this Agreement from time to time and such modifications or amendments will be effective as of the date they are posted in the Service.

 

  1. You must be 13 years of age or older to access and use the Service. By accessing and using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. SWIRVE prohibits the creation of, and you agree that you will not create an account for anyone other than yourself. You also represent that all information you will provide or have provided to SWIRVE upon creation of your account and at all other times, will be true, accurate, current and complete, and you agree to update your information as necessary to maintain its truth and accuracy. By using the Service, you represent and warrant that you have the right to post the information, photographs or other images on the Service and grant us the licenses set forth below in Section 10 (c).

 

  1. Use of the Service. In addition to the foregoing, by accessing and using the Service you agree to the following:

 

  1. You will not post or transmit to the Service, SWIRVE or any other user(s) (either on or off the Service) any images or messages that are or could be reasonably construed to be offensive, hateful, false, abusive, obscene, pornographic, profane, defamatory, libelous, threatening, violent, intimidating, harassing, discriminatory, racist or racially offensive, illegal; or to promote violence against or harassment of another person or group of persons; or that may otherwise infringe or violate the rights of another person (including intellectual property rights, and rights of privacy and publicity);

 

  1. You will not defame, stalk, bully, abuse, harass, threaten, make disparaging or insensitive comments relating to another user’s character or appearance, impersonate or intimidate other users, use profanity or use language that is explicitly vulgar or sexual in nature whether on your profile or through the instant messaging service;

 

  • You will not post or otherwise share private or confidential information about yourself or another user via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses. We strongly recommend that you do not use your real name as, or as part of, your “Nickname” on the Service. We recommend instead that you use a Nickname that does not disclose your real identity. Moreover, we strongly recommend that you do not disclose your real name or other identifying information to other users unless and until you feel comfortable and safe to do so.

 

  1. You will not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, and local) applicable to your use of the Service and the content you create on or transmit to others in the Service including through instant messaging, photographs or profile text (collectively, the “User Content”).

 

  1. You will not solicit, collect or use the login credentials of other users.

 

  1. You will not solicit or request money from users, or engage in any activity that is intended to otherwise defraud or mislead other users of the Service;

 

  • You will not engage in any activity that involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming” (or “spimming”, “phishing”, “trolling” or similar activities);

 

  • You will not impersonate any other person, real or fictitious, or otherwise misrepresent an affiliation, connection or association with, any person or entity, including SWIRVE. This includes posting photographs of persons other than yourself under the pretense that you are that person;

 

  1. You will not use this site for your own commercial purposes, or on behalf of another person or entity, or attempt to solicit users for such purposes or for purposes that are unlawful;

 

  1. You will not copy or disseminate another user’s information or photos without his or her permission;

 

  1. You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.

 

  • You will not collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Service;

 

  • You will not interfere with or disrupt the Service or the servers or networks connected to the Service;

 

  • You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Service (either directly or indirectly through use of third party software).

 

  1. You will not “frame” or “mirror” any part of the Service, without our prior written authorization.

 

  • You will not use meta tags or code or other devices containing any reference to SWIRVE or the Service (or any trademark, trade name, service mark, logo or slogan of SWIRVE) to direct any person to any other website for any purpose.

 

  • You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service any software used on or for the Service, or cause others to do so.

 

  • You will not post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape or screen capture) in any manner or media any User Content or information obtained from the Service other than solely in connection with your use of the Service in accordance with this Agreement.

 

  • We reserve the right, in our sole discretion, to monitor your account and activities and take any action including legal action against anyone who violates any of these provisions.

 

  1. You understand that the foregoing list is not exhaustive and we reserve the right to remove any User Content, or otherwise suspend or terminate your account and access to the Service for User Content or conduct that has been flagged as inappropriate by another user, or that we deem violates this Agreement or any other SWIRVE policy at our sole discretion.

 

  • We may access, preserve and disclose your account information and its content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that the User Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Service in the future; or (v) protect the rights, property or personal safety of SWIRVE or any other person. For more information regarding the information we collect from you and how we use it, please consult our Privacy Policy http://www.swirve.com/privacypolicy.

 

  • You understand and agree that any content you place on the Service may be viewed by other users and may be viewed by any person visiting or participating in the Service.

 

  • Any use of the Service is void where prohibited by this Agreement, or any applicable federal or state law or regulation. Using the Service may be prohibited or restricted in certain countries. If you use the Service from outside of the United States, you are responsible for complying with the laws and regulations of the territory from which you access or use the Service.

 

  1. Creating an Account.The SWIRVE login allows you to access the Service using either your Facebook account or a valid email address. By choosing to login through Facebook, you authorize SWIRVE to access and use certain Facebook account information, including but not limited to your public Facebook profile, email address and information about Facebook friends, and any public information you provide on other social media sites or applications that are linked to your Facebook account, such as Instagram. If you use your email to login, you must enter a valid email address and complete the verification process before you can create an account. After you enter a valid email address into the SWIRVE login, an email will be delivered to your account asking you to verify your connection to the account and complete the account process. For more information regarding the information we collect from you and how we use it, please consult our Privacy Policy [http://www.swirve.com/privacypolicy].

 

Creating a Profile. After you create an account, you will have the ability to create your SWIRVE profile. The first step will be to create your unique “Nickname”, which will be used to identify you within the Service to other users. You can create a brief bio about yourself using up to 200 characters, as well as upload photos and other images, as well as video and audio files (collectively “Media”). You can upload your Media from your computer or smart device, your Facebook account or, connected Instagram account. For more information regarding the information and Media we collect from you and how we use them, please consult our Privacy Policy [http://www.swirve.com/privacypolicy].

 

  1. Term and Termination. This Agreement and any amendments hereto will remain in effect for as long as you use the Service and/or have an account with us. You may disable your account at any time, for any reason, by following the instructions in “Settings” within the Service. Be advised that disabling the account WILL NOT DELETE your account and profile information from our databases. In order to have your account deleted you must contact [contact@swirve.com]. For more information about this process, please refer to our Privacy Policy [http://www.swirve.com/privacypolicy]. We also reserve the right to terminate or suspend your account at any time if we believe that you have violated this Agreement or any federal or state law, or for any other reason, with or without cause, in our sole discretion. Upon such termination or suspension, you will not be entitled to any refund of unused fees for in app purchases. In the event that you have questions regarding the suspension or termination of your account, we will make every effort to communicate the grounds for such action. However, be advised that we are not required and may in fact be prohibited by law from disclosing the reason for the termination or suspension of your account. Except for those terms that by their nature expire or are fully satisfied, the terms of this Agreement will survive in the event of suspension or termination of your account.

 

  1. Non-commercial Use by Users. The Service is for personal use only. Users may not use the Service or any content contained in the Service in connection with any commercial endeavors, such as advertising or soliciting any user to buy or sell any products or services not offered by us or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the Service may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Service for any purpose. We will investigate and take any available legal action in response to illegal and/or unauthorized uses of the Service, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Service.

 

  1. Account Security. You are responsible for maintaining the confidentiality of your Nickname, login and passwords, and you are solely responsible for all User Content on your profile and any activities that take place through your account. You agree to immediately notify us of any disclosure or unauthorized use of your Nickname, login or password or any other breach of security at [contact@swirve.com] and ensure that you log out from your account at the end of each session.

 

  1. Interactions with Other Users.
  1. You are solely responsible for your interactions with other users. You understand that SWIRVE currentlydoes not conduct criminal background checks or screenings on its users. We also do not inquire into the backgrounds of our users or attempt to verify the statements of its users. We reserve the right to conduct any criminal background check or other screenings (such as sex offender register searches), on any user of the Service at any time and using available public records. We make no representations or warranties as to the conduct of users, nor do we promote, endorse or discriminate against any individual user or groups for any reason including: physical characteristics, age, gender, race, religion, national or ethnic origin.

 

  1. We are not responsible and under no circumstances liable to you for the conduct of any user. Specifically, the Company, its affiliates or its partners will not be held liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from use of the Service including any communications between you and other users. You agree to take all necessary precautions in all interactions with other users, particularly if you decide to communicate off the Service or meet in person, or if you decide to send money to another user. You understand that SWIRVE makes no guarantees, either express or implied, regarding how you will be ranked in the Service. The Service is meant to provide personal enjoyment and entertainment to its users and any rankings derived from a user’s “likeability” amongst other SWIRVE users are determined by the highly subjective tastes of other users and such rankings are in no way determined or endorsed by us. As such, a user’s Profile rankings are in no way, and should never be interpreted as an actual indicator of a user’s appearance or overall desirability.

 

  1. Proprietary Rights.

 

  1. The Service contains content owned or licensed by SWIRVE (“SWIRVE Content”). SWIRVE Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and SWIRVE, SWIRVE owns and retains all rights in the SWIRVE Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SWIRVE 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 SWIRVE Content.

 

  1. The SWIRVE name and logo are trademarks of SWIRVE, and may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of SWIRVE, and may not be copied, imitated or used, in whole or in part, without prior written permission from SWIRVE.

 

  1. SWIRVE does not claim ownership of any User Content that you post on or through the Service. Instead, you hereby grant to SWIRVE, its affiliates, licensees and successors, an irrevocable, perpetual, non- exclusive, transferable, sub-licensable, fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the User Content, (ii) prepare derivative works of the User Content or incorporate the User Content into other works, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter create, subject to the terms of our Privacy Policy [http://www.swirve.com/privacypolicy]. You represent and warrant that any posting and use of your User Content by us will not infringe or violate the rights of any third party.

 

  1. Third Party Advertising. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that SWIRVE may place such advertising and promotions on the Service or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

 

  1. In-App Purchases. Download, access and use of the SWIRVE application is free. Users who wish to purchase certain in-app services, features or products may do so subject to the terms of any individual agreements that may apply to that particular service, feature or product. Such terms and conditions as disclosed and agreed to by you will form part of this Agreement and the Service as it relates to your account. Payment for in-app services, features or products will be conducted through Apple Pay a third party and subject to the terms of a separate agreement between you and Apple Pay.

 

  1. Customer Service. SWIRVE provides assistance and guidance through our Customer Service Team, which can be contacted at [contact@swirve.com].

 

  1. Modifications to Service. SWIRVE reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree SWIRVE shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. To protect the integrity of the Service, we reserve the right at any time in our sole discretion to block users from certain IP addresses from accessing the Service.

 

  1. Copyright Policy; Notice and Procedure for Making Claims of Copyright Infringement. Users of the Service may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
    1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
    2. a description of the copyrighted work that you claim has been infringed;
    3. a description of where the material that you claim is infringing is located on the Service (and such description must be reasonably sufficient to enable us to find the alleged infringing material, such as a URL or user’s nickname);
    4. your address, telephone number and email address;
    5. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

Notice of claims of copyright infringement should be provided to [contact@swirve.com] or the following address:

 

SWIRVE Copyright Agent

c/o Zeppos Rautiola LLP

8001 Irvine Center Dr.,

Suite 1550

Irvine, CA 92618

ATTN: COPYRIGHT

 

We reserve the right to delete infringing content and otherwise suspend or cancel the account of copyright infringers.

 

  1. Disclaimer. You acknowledge and agree that neither the Company nor its affiliates and third party partners are responsible for and shall not have any liability, directly or indirectly, for any loss or damage, including personal injury or death, as a result of, or alleged to be the result of your use of the Service. The Service, including, without limitation, SWIRVE Content, is provided on an “as is”, “as available” and “with all faults” basis. To the fullest extent permissible by law, neither SWIRVE nor any of our employees, managers, officers or agents (collectively, the “SWIRVE Parties”) make any representations or warranties or endorsements of any kind whatsoever, express or implied, as to: (a) the service; (b) the SWIRVE Content; (c) User Content; or (d) security associated with the transmission of information to SWIRVE or via the Service. In addition, the SWIRVE Parties hereby disclaim all warranties, express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, system integration and freedom from computer virus.

 

The SWIRVE Parties do not represent or warrant that the service will be error-free or uninterrupted; that defects will be corrected; or that the service or the server that makes the service available is free from any harmful components, including, without limitation, viruses. The SWIRVE Parties do not make any representations or warranties that the information (including any instructions) on the Service is accurate, complete, or useful. You acknowledge that your use of the Service is at your sole risk. The SWIRVE Parties do not warrant that your use of the service is lawful in any particular jurisdiction, and the SWIRVE Parties specifically disclaim such warranties. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to you to the extent such jurisdiction’s law is applicable to you and these Terms of Use. By accessing or using the Service you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Service.

 

The SWIRVE Parties do not endorse or promote any User Content and specifically disclaim any responsibility or liability to any person or entity for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character based upon or resulting from any User Content.

  1. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL THE SWIRVE PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE SWIRVE CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE SWIRVE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE SWIRVE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE SWIRVE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE SWIRVE PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF SWIRVE’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 MOBILE APPLICATION, WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE SWIRVE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY MOBILE APPLICATION, WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE SWIRVE PARTIES.

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

SWIRVE IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION,            OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

  1. Arbitration Agreement & Governing Law.

 

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Service shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against SWIRVE in a small-claims court of competent jurisdiction. But whether or not you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against SWIRVE any class action, class arbitration, or other representative action or proceeding.

 

By using the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and SWIRVE (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR SELECTED BY SWIRVE, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

 

Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against SWIRVE (except for small-claims court actions) may be commenced only in the federal or state courts located in Los Angeles County, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.

 

This Agreement, and any dispute between you and the Company, shall be governed by the laws of the state of California without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

 

You may opt out of this agreement to arbitrate. If you do so, neither you nor SWIRVE can require the other to participate in an arbitration proceeding. To opt out, you must notify SWIRVE in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

 

SWIRVE, LLC

c/o Zeppos Rautiola LLP

8001 Irvine Center Dr.,

Suite 1550

Irvine, CA 92618

ATTN: ARBITRATION OPT-OUT

 

You must include your name and residence address, the email address and Nickname you use for your SWIRVE account, and a clear statement that you want to opt out of this arbitration agreement.

 

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This Arbitration Agreement will survive the termination of your relationship with SWIRVE.

 

  1. Indemnity. You agree to indemnify and hold SWIRVE, its subsidiaries, and affiliates, officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your breach of or failure to comply with this Agreement (including any breach of your representations and warranties contained herein), any User Content you post in the Service, and the violation of any law or regulation by you. SWIRVE reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SWIRVE in connection therewith.

 

  1. Entire Agreement; Other. This Agreement, with the Privacy Policy and any specific guidelines or rules that are separately posted for particular services or offers in the Service, contains the entire agreement between you and the SWIRVE regarding the use of the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure of SWIRVE to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that your online account is non-transferable and all of your rights to your Profile or contents within your account terminate upon your death. No agency, partnership, joint venture or employment is created as a result of this Agreement and you may not make any representations or bind SWIRVE in any manner.

 

  1. Flagging Profiles and Reporting Abuse. You may report abuse of these Terms of Use or the Privacy Policy, by selecting “Report Inappropriate” from the drop down menu on another user’s profile.       By flagging the account, the user’s profile will be submitted to us for review and appropriate action taken where it is determined that the User Content is in violation. You may also contact us directly at [contact@swirve.com] to report abuse of the Service. Be advised that we will make every effort to keep your comments and identity confidential.