Swell Terms of Service
December 14, 2020
Agreement to Terms.
By using our Services, you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use the Services.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND SWELL THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 "DISPUTE RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION.
Changes to these Terms or the Services.
We may update the Terms from time to time in our sole discretion. If we do, we'll let you know by posting the updated Terms on the Site and may also send other communications. It's important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don't agree to be bound by the changes, you may not use the Services anymore. The only exception is for changes to the "Dispute Resolution" section, for which you have followed the process in Section 16(f). Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
You may use the Services only if you are at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), not a convicted felon or sex offender, and not otherwise barred from using the Services under applicable law. For certain features of the Services you'll need an account. It's important that you provide us with accurate, complete and current account information and keep this information up to date. If you don't, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You're responsible for all activities that occur under your account.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services ("Feedback"). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
Our Services may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio, video and any other form of media or data the Services may support. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as "User Content". Swell does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
Permissions to Your User Content.
License to Swell. By making any User Content available through the Services you hereby grant to Swell a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and to analyze and use the User Content to create Aggregate Data. For the avoidance of doubt, the rights granted herein permit Swell to create artificial intelligence and machine learning models based on the User Content or Aggregate Data, and generate statistics, calibrate data models, and improve algorithms of any such models. As used herein, "Aggregate Data" means the aggregate, anonymized metadata created by, or for Swell, about the usage of the Services, the submission of User Content and the content of the User Content. Aggregate Data specifically excludes any content or information that could identify you or any other individual referenced in User Content. By way of illustration, Aggregate Data includes, without limitation, trends that Swell may observe and extract from User Content as a result of analysis of such User Content.
License to Other Users of the Services. By making any User Content available through the Services you also grant to each other user of the Services a non-exclusive, transferable, worldwide, royalty free license, to access your User Content through the Services, and to use, distribute, publicly display, and publicly perform that User Content in accordance with the functionality of the Services. For clarity, this license does not grant any rights or permissions for a user to make use of your Content independent of the Services.
Your Responsibility for User Content.
You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Swell on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Removal of User Content.
You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Swell's Intellectual Property.
We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content and all Aggregate Data that we create in connection with the Services
Rights and Terms for Apps.
If you comply with these Terms, Swell grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
Additional Information: Apple App Store.
This paragraph applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party's intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
General Prohibitions and Swell's Enforcement Rights.
You agree not to do any of the following:
Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services or any individual element within the Services, Swell's name, any Swell trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Swell's express written consent;
Access, tamper with, or use non-public areas of the Services, Swell's computer systems, or the technical delivery systems of Swell's providers;
Attempt to probe, scan or test the vulnerability of any Swell system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Swell or any of Swell's providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Swell or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Swell trademark, logo URL or product name without Swell's express written consent;
Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Swell is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Swell respects copyright law and expects its users to do the same. It is Swell's policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Swell's Copyright Policy at https://swell.life/copyrightpolicy, for further information.
Links to Third Party Websites or Resources.
The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your account, all provisions of these Terms which by their nature should survive will survive, including (but not limited to): Sections 11, 13, 14, 15, and 16.
THE SERVICES AND USER CONTENT ARE PROVIDED BY SWELL “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content, including User Content, on the Services.
YOU UNDERSTAND AND AGREE THAT THE SERVICES AND ANY USER CONTENT YOU ACCESS AND READ VIA THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY. USE OF OR RELIANCE UPON ANY INFORMATION PROVIDED BY THE SERVICES AND ANY USER CONTENT IS SOLELY AT YOUR OWN RISK. WE DO NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE COMPLETENESS, TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY USER CONTENT OR COMMUNICATIONS POSTED VIA THE SERVICES OR ENDORSE ANY OPINIONS EXPRESSED VIA THE SERVICES. YOU UNDERSTAND THAT BY USING THE SERVICES, YOU MAY BE EXPOSED TO USER CONTENT THAT MIGHT BE OFFENSIVE, HARMFUL, INACCURATE OR OTHERWISE INAPPROPRIATE, OR IN SOME CASES, POSTINGS THAT ARE MISLEADING OR OTHERWISE DECEPTIVE.
You will indemnify and hold harmless Swell and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SWELL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SWELL OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL SWELL'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO SWELL FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SWELL, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWELL AND YOU.
Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 "Dispute Resolution," the exclusive jurisdiction for all Disputes (defined below) that you and Swell are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Swell each waive any objection to jurisdiction and venue in such courts.
Mandatory Arbitration of Disputes.
We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Swell agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Swell are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
As limited exceptions to Section 16(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
Conducting Arbitration and Arbitration Rules.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We'll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we'll pay all of our attorneys' fees and costs and won't seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law.
Injunctive and Declaratory Relief.
Except as provided in Section 16(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver.
YOU AND SWELL 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, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Effect of Changes on Arbitration.
Notwithstanding the provisions of Section 3 "Changes to Terms or Services" above, if Swell changes any of the terms of this Section 16 "Dispute Resolution" after the date you most recently accepted these Terms, you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org ) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Swell's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Swell in accordance with the terms of this Section 16 "Dispute Resolution" as of the date you most recently accepted these Terms.
With the exception of any of the provisions in Section 16(f) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Reservation of Rights.
Swell and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
These Terms constitute the entire and exclusive understanding and agreement between Swell and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Swell and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Swell's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Swell may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Swell under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Rights.
Swell's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swell. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Swell at email@example.com