Acceptance of Terms
Welcome to Swell Systems Inc. (the "Swell") and our Terms of Use (these "Terms"). These Terms are important and affect your legal rights, so please read them carefully. Note that Section 14 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
By accessing or using the website located at https://swellsystem.com (the "Site") provided by Swell ("we" or "us") that link to these Terms, you agree to be bound by these Terms and all of the terms incorporated herein by reference.
By accepting these Terms, you represent that you are 18 years of age or older and that, if you have accepted these Terms on behalf of any person or entity, you represent that you have the legal authority to do so and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
If you do not agree to every provision of these Terms, you may not access or use the Site, or order, receive, or use any services, including without limitation any Subscription made available through the Site (collectively, the "Services").
Registration
In order to access and use certain areas or features of the Site, you will need to register for a Swell account. Each registration is for a single user only.
By creating a Swell account, you agree to (a) provide accurate, current, and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your account.
No Resale
You are not permitted to resell or otherwise use the Services for commercial purposes.
License to Access and Use the Site and Site Content
Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the Swell logo and all designs, text, graphics, pictures, information, data, software, User Content, other files and the selection and arrangement thereof (collectively, "Content") are the property of Swell or our licensors or users, as applicable, and are protected by the U.S. and international copyright and other laws.
Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicensable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved.
Such license does not include any right to: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download any portion of the Site or Content, except as expressly permitted by us, (f) use the Site to stalk, threaten, or otherwise violate the rights of others, (g) interfere with the Site or servers or networks used in connection with the Site, or (h) use the Site or Content other than for their intended purposes.
Trademarks
The Swell logo and any other Swell product or service names, trademarks, logos, or other indicia ("Marks") that may appear on the Site, or Services are the property of Swell or its subsidiaries, affiliates, or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission.
Legal Requirements; Privacy Statement
Swell is committed to processing and protecting the personal data collected when you use the Site in compliance with its obligations under applicable privacy laws, including, if applicable to you, the European Union General Data Protection Regulation. Please see our Privacy Statement for additional information relating to the privacy and security of information collected.
User Content
You are solely responsible and liable for all data, information, and other materials ("User Content") that you submit, upload, post, e-mail, or otherwise transmit ("Transmit") in connection with the Site. We have no control over and shall have no liability for any damages resulting from the use or misuse by any third party of information made public through the Site.
You agree that you will not Transmit any User Content that is:
- Unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another's privacy or racially, ethnically, or otherwise objectionable
- Content that you do not have the right to transmit, under any law or contractual or fiduciary relationships
- Content that infringes any patent, copyright, trademark or other intellectual property right
- Unsolicited or unauthorized advertising or promotional materials, "spam," "chain letters," or pyramid schemes
- Contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data
Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting, or submitting User Content to the Site, you hereby grant Swell a nonexclusive, royalty-free, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content.
Feedback
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials, or other information about Swell, the Site, or our Services (collectively, "Feedback"). Feedback is non-confidential and shall become the sole property of Swell.
Linked Sites
We have not reviewed all of the websites linked to the Site and are not responsible for the content of any third-party pages, any other websites linked to the Site, or any products or services offered by third parties linked to the Site.
Indemnification
To the fullest extent permitted by applicable law, you agree to defend, hold harmless and indemnify Swell, its subsidiaries and affiliates, business partners, contractors, clients and service providers, and their respective officers, employees, agents, and representatives (collectively, the "Swell Parties") from and against any claims, liabilities, costs or damages, including reasonable attorneys' fees and paralegal fees through final appeals, made by any third party relating to or arising from your use of the Site, Services, any User Content that you transmit to or through the Site, any Feedback you provide, any violation of these Terms by you, or any other act or omission by you.
Disclaimers
THE SITE, THE CONTENT, AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SWELL NOR SWELL PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE SITE CONTENT; (C) USER CONTENT; (D) ANY PRODUCT OR SERVICE; OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE.
SWELL PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, SERVICES, OR THE SERVER THAT MAKES THE SITE AND SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWELL PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITE, SERVICES OR CONTENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SWELL PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF SERVICES PURCHASED FROM THE SITE EXCEED THE AMOUNT PAID FOR SUCH SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
Arbitration and Class Action Waiver
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SWELL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
YOU AND SWELL AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR THE SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES. Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case, and the arbitration process and result is subject to very limited review by courts.
You and Swell agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Swell are each waiving the right to a trial by jury or to participate in a class action.
REGARDLESS OF THE FORUM, 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.
Modifications to the Site and Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the provision of any Services at any time.
Termination
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site and to order or receive and use the Services, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event.
Refunds
You can cancel your subscription at any time but no refunds will be issued. Your subscription will remain active at its current level through the end of the billing period that it has been already paid for.
Cancellation
You can cancel your subscription at any time by visiting your settings page and clicking on the "Subscriptions" tab.
Governing Law and Jurisdiction
Swell operates the Site from North Carolina, U.S.A. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance, and enforcement shall be governed by the laws of the State of North Carolina, the U.S.A. without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State.
The exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts of North Carolina, U.S.A., or the United States District Court for the Eastern District of North Carolina and you agree to the personal jurisdiction of such courts.
Notice
All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to Swell at: support@swellsystem.com. Please report any violations of these Terms to Swell at the contact listed above.
Severability
If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause or provision of these Terms.
Miscellaneous
These Terms constitute the entire agreement between you and Swell relating to your access to and use of the Site and your order, receipt, and use of Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Swell.
Procedure for Making Claims of Copyright Infringement
We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Site infringes your copyright, please provide our copyright agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest
- A description of the copyrighted work that you claim has been infringed
- A description of where the material that you claim is infringing is located on the Site
- Your address, telephone number, and email address
- A 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
- A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner
Swell's copyright agent for notice of claims of copyright infringement can be reached as follows:
Swell Systems Inc.
Attn: Derek Schmidt
1844 Sir Tyler Drive
Wilmington, NC 28405
Phone: 910-218-9993
Email: dschmidt@swellsystem.com