Terms And Conditions
Effective Date: February 16th 2017
Last Updated Date: February 16th 2017
Acceptance of the Terms and Conditions.
Binding Agreement; Description. Swipecast Inc. (“Swipecast,” “we,” “us” or “our”) provides and makes available its website located at http://swipecast.com/ (the “Site”), along with its Swipecast mobile application (the “App,” together with the Site, the “Service”). All uses of the Service are subject to the terms and conditions contained in this End User License and Terms of Service (“EULA”). Please read this EULA carefully. By accessing, browsing or otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by this EULA. If you do not accept the terms and conditions of this EULA, then you may not access, browse or use the Service.
AS FURTHER DESCRIBED BELOW, THIS EULA REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Changes to this EULA. You understand and agree that Swipecast may change this EULA at any time without prior notice; provided that Swipecast will endeavor to provide you with prior notice of any material changes. You may read the current, effective version of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised terms and conditions. If any change to this EULA is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Swipecast provides to you that replace and/or supplement any portion of the Service, unless that upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Swipecast that arose prior to the effective date of such revision.
Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 18 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY SWIPECAST. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that you are at least 18 years of age. If you are using the Service on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you (i) are an authorized representative of that Organization; (ii) have the authority to bind that Organization to this EULA; and (iii) agree to be bound by this EULA on behalf of that Organization.
Description. The Service allows end users (“Clients”) to search for and cast models (“Models”), as well as photographers, stylists, make-up artists and hair-dressers (collectively, “Contractors,” together with Models, “Talent”) for gigs. A gig booked through the Service is a “Project.” Clients, Models and Contractors are collectively, “Users.”
Clients. Clients may browse photos of Models and examples of their previous jobs through the Service. Clients may also browse the profiles of Contractors and view information about their previous work experience. If a Client wants to hire Talent, then the Client may message the Talent through the Service or initiate a booking and if the Talent agrees to do the Project, pay the Talent through the Service.
Talent. The Talent may book jobs through the Service once requested by a Client. The Talent will be paid for a Project through the Service upon completion of the Project. The Talent may also submit their own profiles and pictures to the Service.
Mobile Services. The App is accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be strictly in accordance with this EULA.
PLEASE NOTE THAT SWIPECAST WILL ALSO BE AVAILABLE IN ABOUT 6 MONTHS VIA A DESKTOP ACCESS AND LOGIN.
Log-in Credentials. In order to fully utilize the Service, you must download the App and register an account with the Service (an “Account”). In order to create an Account, you must provide your name, email address, social media account information and certain documentation that helps to verify your identity.
Account Security. You are responsible for maintaining the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Swipecast immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Swipecast will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Swipecast of such unauthorized use or loss of your credentials. Separate log-in credentials may be required by the owners and/or operators of External Sites (as defined below) to access such External Sites.
Accuracy of Information. In creating an Account, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by Swipecast. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. If messages sent to an e-mail address provided by you are returned as undeliverable, then Swipecast reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
We reserve the right to also be able to read your messages with our without your permission or foreknowledge.
Intellectual Property Rights
License. The Service is licensed, not sold, to you for use only under the terms of this EULA. Swipecast reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Swipecast hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for the purpose of (i) searching for Talent and booking Projects if you are a Client, or (ii) booking Projects if you are the Talent.
Content. Except for User Materials (as defined below), the content made available on or through the Service, including without limitation, any text, graphics, photos, software, and interactive features, may be protected by copyright or other intellectual property rights and owned by Swipecast or Swipecast’s third party licensors (the “Swipecast Content”). You may not copy, reproduce, upload, republish, transmit, post or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this EULA or permitted by functionalities of the Service. You may not modify any materials obtained from the Service unless you have obtained prior express written authorization from the applicable copyright owner. You must obtain permission for all other uses of materials made available on or through the Service from Swipecast or the copyright owner in advance and in writing. Swipecast solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill.
Marks. The trademarks, service marks, and logos of Swipecast (the “Swipecast Trademarks”) used and displayed on the Service are registered and unregistered trademarks or service marks of Swipecast. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Swipecast Trademarks, the “Trademarks”). Nothing on the Service or in this EULA should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without Swipecast’s prior express written consent for each individual use. You may not use the Trademarks to disparage Swipecast or the applicable third-party, Swipecast’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Swipecast’s prior express written consent. All goodwill generated from the use of any Swipecast Trademark will inure solely to Swipecast’s benefit.
Restrictions.You may not sell, transfer, assign, license, sublicense, or modify the Swipecast Content or App, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Swipecast Content in any way for any public or commercial purpose. The use or posting of any of the Swipecast Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In addition, you also may not attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this EULA, then your right to access and/or use the Swipecast Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Swipecast Content.
Additional Terms of CLients
Submitting Projects. Clients may submit Projects and book Talent through the Service. As a Client, you represent and warrant that the information you submit about each Project (together, with all other materials submitted by you to the Service, “Client Materials”) is accurate. In addition, Swipecast has the right – but not the obligation – in its sole discretion to refuse or delete any Projects that it reasonably considers to violate this EULA or be otherwise illegal or inappropriate.
Booking Projects. If you wish to book Talent for a Project, you may request a booking through the Service, which the Talent may accept or reject in his or her sole discretion. If the Talent accepts a Project, Swipecast will charge you for the price you have submitted for the Project (the “Fee”). The Fee will be held in escrow by Swipecast’s payment processor until 48 hours after the Project’s completion. As long as there are no good faith disputes regarding the booking during the 48 hours immediately following completion of the Project, Swipecast will then authorize its payment processor to release the Fee. Swipecast’s payment processor will pay the Fee to the Talent, minus a service charge retained by Swipecast in the amount of 15% of the applicable Fee (“Model Fee”). We also reserve the right in our sole discretion to charge each Client a fee in the amount of 3% of the applicable Model Fee to help defray the payment processing fees imposed on us by our payment processor (“Client Fee,” together with the Model Fee, the “Swipecast Fee”).
Cancellation. Clients may cancel Projects booked through the Service in their sole discretion. If a Client cancels a Project within 48 hours of the Project start-date, then the Client will be charged up to 50% of the applicable Fee. If a Client cancels a Project at any time prior to 48 hours before the Project start-date, then Swipecast’s payment processor will refund the Fee to the Client. If the Talent cancels a Project within 48 hours of the Project start-date, then we reserve the right in our sole discretion to take remedial action, which may include, without limitation, prohibiting such Talent from using the Service. If either a Client or the Talent cancels a Project booked through the Service at any time, we reserve the right to charge the Swipecast Fee in our discretion. We may change the cancellations policies set forth in this Section in our sole discretion.
Additional Terms of Models
Model Materials. If you are a Model, then you may submit photographs and demographical details about yourself to create a profile on the Service (together, with all other materials submitted by you, “Model Materials”). As a Model, you represent and warrant that your model materials are accurate. You also agree that Swipecast may display your name and Model Materials on the Service to Clients. If you submit any photographs of yourself to the Service, then you hereby grant to Swipecast the right to use, reproduce, display and distribute your photographs to market, promote and advertise the Service through any media and formats now known or hereafter developed. You may remove photographs of yourself that you post to the Service through the functionality offered by the Service.
Booking Projects. When you receive a request for a Project from a Client, you may accept or reject such request in your sole discretion. If you accept the request, then you will be paid through the Service upon completion of the Project as described above.
No Conflicts. By using the Service, you represent, warrant and covenant to Swipecast that your authorized use of the Service does not and will not violate any contract between you and a third party, including, without limitation, any modeling agency and/or “mother agency”.
Additional Terms for Contractors
Contractor Materials. If you are a Contractor, then you may submit information about yourself and your prior work experience to create a profile on the Service (together, with all other materials submitted by you, “Contractor Materials”). As a Contractor, you represent and warrant that your Contractor Materials are accurate. You also agree that Swipecast may display your name and Contractor Materials on the Service to Clients.
Booking Projects. When you receive a request for a Project from a Client, you may accept or reject such request in your sole discretion. If you accept the request, then you will be paid through the Service upon completion of the Project as described above.
User Materials. Client Materials, Model Materials and Contractor Materials are collectively, "User Materials."
License to User Materials By Posting User Materials to the Service, you hereby grant Swipecast (and its assignees, designees, successors, licensees, and sub-licensees), for the sole purposes of displaying your User Materials to other Users, an unrestricted, assignable, sublicensable, revocable, royalty-free, fully paid up license throughout the world and during the term of the EULA to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all User Materials you upload to or through the Service through any media and formats now known or hereafter developed.
License for Name, Image, Voice, and Likeness You further grant Swipecast a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any User Material you post to the Service) made available by or on your behalf through the Service in conjunction with the rights you grant in Section 7.a above.
Limited Waiver of Rights By posting User Materials to or through the Service you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Materials, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Materials you post to the Service, during the term of the EULA. You expressly release Swipecast and all of Swipecast’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Materials as authorized in the EULA.
Representations and Warranties With Respect to Your User Materials. Except for materials Swipecast provided to you through the Service, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your User Materials that you post to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Swipecast the rights in your User Materials as contemplated under the EULA, and (ii) neither the User Materials you post to the Service nor your creation of, accessing, or posting of your User Materials or Swipecast’s Use of your User Materials (or any portion thereof) as permitted in the EULA will (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Swipecast to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
Prohibition on Uploading Objectionable Content You agree not to submit User Materials that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred (collectively, “Objectionable Content”), as Swipecast determines in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code. If you encounter any Objectionable Content on the Service, please email Swipecast at firstname.lastname@example.org. The Service will include functionality that will allow you to “flag” Objectionable Content. Just because you flag certain content does not mean that Swipecast will remove that content from the Service. Swipecast has the right, but not the obligation, to remove any content from the Service that has been flagged as Objectionable Content.
Messages The Service allows Users to send messages (“Messages”) to each other. Sending Messages is a privilege, not a right, and Swipecast may terminate such privileges of any User at any time and for any reason, without any liability to such User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a User sends you an objectionable Message, then please notify us by sending an e-mail to email@example.com. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree to take reasonable precautions in all interactions with other Users, particularly if you decide to communicate with another User offline or meet them in person. You agree that Swipecast may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transmission to the intended recipient through the Service and for such other purpose as Swipecast may deem appropriate in its sole discretion.
Restrictions on Use of the Service
In using the Service, you agree not to:
take any action that imposes an unreasonable load on the Service’s infrastructure;
use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service
attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Service;
delete or alter any material posted on the Service by Swipecast or any other person or entity;
frame or link to any of the materials or information available on the Service;
alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Swipecast or obtained from the Service;
access, tamper with, or use non-public areas of the Service, Swipecast’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Swipecast’s providers;
harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Swipecast employees;
provide any false personal information to Swipecast;
create a false identity or impersonate another person or entity in any way;
create a new account with Swipecast, without Swipecast’s express written consent, if Swipecast has previously disabled an account of yours;
solicit, or attempt to solicit, personal information from other Users;
restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about users of the Service;
use the Service to send emails or other communications to persons who have requested that you not sent them communications;
gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
post, transmit or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
violate any applicable federal, state, or local laws or regulations or the terms of this EULA; or
assist or permit any persons in engaging in any of the activities described
External Sites. The Site and/or App may contain links to third party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Swipecast is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Swipecast or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Swipecast, you agree that:
Swipecast has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
Feedback is provided on a non-confidential basis, and Swipecast is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
You irrevocably grant Swipecast perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
Respect of Third Party Rights. Swipecast respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
Repeat Infringer Policy. Swipecast’s intellectual property policy is to (i) remove or disable access to material that Swipecast believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Materials uploaded to the Service by “repeat infringers.” Swipecast considers a “repeat infringer” to be any user that has uploaded User Materials or Feedback to or through the Service and for whom Swipecast has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Materials or Feedback. Swipecast has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Swipecast’s own determination.
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Swipecast with the user alleged to have infringed a right you own or control, and you hereby consent to Swipecast making such disclosure. Your communication must include substantially the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Swipecast to locate the material;
Information reasonably sufficient to permit Swipecast to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Designated Agent Contact Information Swipecast’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via U.S Mail:
Counter Notification If you receive a notification from Swipecast that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Swipecast with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Swipecast’s Designated Agent through one of the methods identified in Section 12.d and include substantially the following information:
A physical or electronic signature of the subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Swipecast may be found, and that the subscriber will accept service of process from the person who provided notification under Section 12.c above or an agent of such person; and
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
Reposting of Content Subject to a Counter Notification If you submit a Counter Notification to Swipecast in response to a Notification of Claimed Infringement, Swipecast will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Swipecast will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Swipecast will replace the removed User Materials or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Swipecast’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Swipecast’s system or network.
False Notifications of Claimed Infringement or Counter Notifications The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Swipecast] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
Swipecast reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
Mandatory Arbitration Please read this carefully. It affects your rights. YOU AND SWIPECAST AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Commencing Arbitration A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Swipecast, to you via any other method available to Swipecast, including via e-mail. The Notice to Swipecast should be addressed to Swipecast Inc., 127 west 26th street # 502, NYC 10001, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Swipecast do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Swipecast may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Swipecast, then Swipecast will promptly reimburse you for your confirmed payment of the filing fee upon Swipecast’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
Arbitration Proceeding The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and Swipecast agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) arbitration will only be conducted if the damages sought exceed $75,000; (ii) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (iii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
No Class Actions YOU AND SWIPECAST AGREE THAT YOU AND SWIPECAST 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
Decision of the Arbitrator Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply New York state law. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
Equitable Relief The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event of a breach of this EULA by Swipecast or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Swipecast, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
Claims You and Swipecast agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Improperly Filed Claims All claims you bring against Swipecast must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Swipecast may recover attorneys’ fees and costs up to $5,000, provided that Swipecast has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Modifications In the event that Swipecast makes any future change to the Mandatory Arbitration provision (other than a change to Swipecast’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Swipecast’s Arbitration Notice Address, in which case your Account and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive this EULA’s termination.
Enforceability If only Section 13.a.iii or the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to this EULA.
Limitation of Liability and Disclaimer of Warranties.
SWIPECAST, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “SWIPECAST PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF. THE SWIPECAST PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY SWIPECAST USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
THE SWIPECAST PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO SWIPECAST PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE SWIPECAST PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
IN NO EVENT WILL ANY SWIPECAST PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SWIPECAST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SWIPECAST’S LIABILITY, AND THE LIABILITY OF ANY OTHER SWIPECAST PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
ome states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE SWIPECAST PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Third Party Disputes. SWIPECAST IS NOT AFFILIATED WITH ANY MOBILE CARRIER OR OTHER THIRD PARTY SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY SUCH PARTIES OR ANY OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE (INCLUDING ANY TALENT OR CLIENT) OR ANY MODELING AGENCY OR “MOTHER AGENCY,” IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE SWIPECAST PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Indemnification. You agree to defend, indemnify, and hold harmless the Swipecast Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your actual or alleged breach of this EULA or your access to, use or misuse of the Swipecast Content or Service. Swipecast will provide notice to you of any such claim, suit, or proceeding. Swipecast reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Swipecast’s defense of such matter.
Termination of the EULA
Sections 1(a), 1(b), 1(d), 2(a), 2(d), 3, 4, 6.c, 7.d, and 9 – 19 survive the termination of this EULA.
Miscellaneous. This EULA is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York, New York. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Swipecast as a result of this EULA or use of the Service. You further acknowledge that by submitting User Materials, no confidential, fiduciary, contractually implied or other relationship is created between you and Swipecast other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Swipecast to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Swipecast unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Swipecast and you, this EULA constitutes the entire agreement between you and Swipecast with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without Swipecast’s prior express written consent. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Swipecast may assign this EULA, including all its rights hereunder, without restriction.
Usage. The standard usage on Swipecast is 6 months across social media, Internet and point of sale (POS) within the country where the photoshoot took place. Our standard usage does not include outdoor advertising such as billboards. If you wish to expand the usage beyond the terms above, please contact us at firstname.lastname@example.org to negotiate an agreement.
NOTICE REGARDING APPLE You acknowledge that this EULA is between you and Swipecast only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever 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, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has 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/or use of the App, 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 the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby 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. If Swipecast provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.